JUDGMENT
Sen, J.
1. This appeal arises out of a suit for realization of rent by the plaintiff landlord against the defendant appellant for the years 1323 to 1325 and three quarters of 1326. The First Court disallowed the claim for rent for 1323 and passed a decree for rent for the remaining period. This decree has been affirmed by the Appellate Court.
2. The case of the plaintiff is that the father of the defendant Ramdhan Majhi executed a kabuliyat in favour, of the plaintiff’ agreeing to an, annual rental of Rs. 75 and 32 1/2 seers of paddy worth Rs. 1-10-9. and also to pay road-cess at Rs. 2-5-6.
3. The case for the defence is that the tenancy in question was acquired by Ramdhan Majhi father of the defendant and one Mohit Majhi father of Jahlu Majhi in 1892 (1298 to 1299 B.S.) when they obtained the land in two instalments by two documents, namely, a registered sale-deed (Exhibit D) and a registered mokarrari patta (Exhibit E); that since then Ramdhan and Mohit jointly cultivated the holding and paid rent to the ijaradar Gangu Majhi and after their death their sons Bhola (the defendant) and Jhalu as well as their cousins Kartik and Tiku are cultivating the lands. As regards the kabuliyat (Exhibit 1), executed by the father, of the defendant, the defendant denies all knowledge of it and contends that even if executed, it was never operative. The plaintiff was unable to produce before the Court the original registered kabuliyat executed by Ramdhan Majhi. He alleged that the original had been lost and the question arose whether secondary evidence of the kabuliyat could be admitted. The Court of first instance as well as the Court of Appeal after going into the evidence came to the conclusion that the kabuliyat had been in the record-room of the plaintiff up to 1911 when it was taken out and filed in a criminal case in the Dhanbad Court and that owing to the negligence of the clerks concerned the document was never taken back from the Court and returned to the record-room. The execution of the kabuliyat was proved by the writer of it, Jagabandhu Sarcar. It appears that the kabuliyat was also proved by means of an admission by Ramdhan himself made in his deposition in a Civil suit in the Munsif’s Court in 1910; this deposition is Exhibit 7 in this case. On these grounds both the Courts found as a fact that Ramdhan the father of the defendant did execute the kabuliyat as alleged and admitted the secondary evidence offered for proving it.
4. On the question as to whether Mohit had anything to do with the tenancy in question both the Courts have come to a finding that neither Mohit nor Mohit’s descendants had anything to do with it and that they were not necessary parties to the suit. Moreover, according to their case they had taken the holdings from the ijaradar Gangu Majhi The Courts have held that there is no evidence that Mohit was ever recognized by the present plaintiff, who is the zemindar, as tenant; that all along since the kabuliyat the plaintiff had been dealing with. Ramdhan and his son the defendant in respect of the tenancy in suit and that the defendant himself had been describing the lands as “his” lands and depositing the rent in his own name.
5. This appeal seems to be concluded by these findings of fact but the learned. Vakil for the appellant contends that the Court below erred in not considering the effect of Section 74 of the Chota Nagpur Tenancy Act on the decision of this case. Section 74 of the Chota Nagpur Tenancy Act apparently cannot possibly have retrospective effect inasmuch as it affects the substantive rights of parties. The kabuliyat in this case was executed before the Chota Nagpur Tenancy Act came into force. Therefore, all agreements entered into prior to the date when the Chota Nagpur Tenancy Act came into operation would obviously be beyond the scope of Section 74. The kabuliyat in question was executed in 1905. The objection, therefore, that is now urged that in view of the provisions of Section 74 of the Chota Nagpur Tenancy Act the kabuliyat would be void and of no effect has no force what soever. Moreover, on the findings of the Courts below this case does not come within the scope of Section 74, inasmuch as the section contemplates the case of a lease executed “with a view to the continuance of such occupation”; where as in the present case there is no question of continuance, the previous tenancy having been under the ijaradar which was not subsequently recoginized by the landlord and therefore, the lease must be regarded as marking the very inception of the tenancy.
6. It is next urged that in view of the provisions of Section 26(a) of the Chota Nagpur Tenancy Act the kabuliyat in question does not satisfy the requirement of law and hence must be deemed to be inoperative. Now it has been held that Section 26 of Act VI of 1908 was not contemplated to invalidate agreements which were valid in their inception, as in the present case, but to validate agreements in special cases out of such agreements as would otherwise have been invalid owing to the provisions of Section 21 of the Chota Nagpur Landlord and Tenancy Procedure Act (I of 1879). The observations of Mookerjee, J. in the case of Gaju Mahto v. G.P. Cooke 16 Ind. Cas. 929 : 16 C.L.J. 422 at pp. 424, 426 : 17 C.W.N. 430 are in support of this view. The contentions of law urged by the learned Vakil for the appellant are, therefore, without any substance.
7. The appeal is dismissed with costs.
Ross, J.
8. I agree.