JUDGMENT
Adami, J.
1. This appeal comes before us after remand to the Subordinate Judge, Muzafferpore, for the determination of certain issues.
2. It appears that in the year 1903 there was a Collectorate partition of Mouza Rela Narain, and the plaintiff’s predecessor-in-title obtained an eight-annas share in the Mauza which was formed into a separate Patti bearing Tonzi No. 295, While the Mouza was still in joint possession of all the Maliks, a thika lease was granted of its entire area to the India Development Company who owned an indigo factory known as Athur Faotory, and it seems that this Company were in possession under successive leases for the period of about 40 years. On the 6th July 1905 Mr. Hickley, as manager of the company’s factory, obtained from the plaintiff’s father a fresh lease of the Patti bearing Touzi No. 295 for the period of five years, at an annual rent of Rs. 672.11-6. During the period of this lease the defendants, who are a firm carrying on the business of growing indigo and sugar-cane, purchased the right, title and interest in the Athur Factory and the lands covered by the lease from the Indian Development Company. The lease should have expired in July 1910 but by consent the defendants were allowed an extension of one year, so that it actully expired on the 6th July 1911,
3. It will be convenient to set forth here the following extracts from the kabuliyat which are necessary for the proper understanding of the case:
(1) I, therefore, give this kabuliyat in writing (and do declare) that I, the declarant, shall year after year, till the term of this kabuliyat, appropriate the produce of the land by personally cultivating it or getting it cultivated by others with indigo or sugarcane, or by entering into any negotiations or settlement with tenants according to my wishes.
(2) That I shall not allow any land declared by the survey as khudkasht to go into the kasht of any tenant.
(3) That if within the term of the thika I, the declarant, bring any suit against any tenant for arrears of rent and purchase at auction the kasht of any tenant in execution of the decree obtained therein, I shall keep it in my possession till the term of the thika and after the expiry of the term of this thika I shall give, up possession of the same on receiving the purchase money from the Malik and shall not bring forward any excuse in doing so.
(4) After the expiry of the term of this kabuliyat in 1317… I shall give up possession of the land and to this I, the declarant, my heirs and representatives shall have no objection, that I, the declarant, shall not set up right of occupancy to any land except in respect to the land purchased at auction from the tenants, which, according to the terms laid down above, the said Malik may not have taken back on payment of purchase money after the expiry of the term of the thika, that if contrary to this, I, the declarant, set up any claim, the said Malik is and will be entitled to take possession of the Dakhili land of me, the declarant, and to realise mesne profits up to the date of delivery of possession at the rate of Rs, 25 per bigha per annum by bringing a suit in Court.
4. It is the plaintiff’s case that in the Patti leased to the defendants there were 99 bighas 12 kathas 1 dhur 8 karants of serial and bakasht land and that on expiry of the lease, while giving up possession of the rest of the lands in the Patti, the defendants continued in possession of the 99 bighas 12 kathas 1 dhur and 8 karanti, and even when, on the 5th February 1913, a notice was served on them to relinquish these lands, the defendants delivered possession of 27 bighas 14 kathas only, claiming to have a right of occupancy, obtained by purchase, in the rest which, they alleged, measured 65 bighas 7 kathas.
5. The plaintiff, therefore, brought this suit on the 27th September 1915 for a declaration of his proprietary right to 71 bighas 18 kathas 6 dhurs still in possession of the defendants and for the ejectment of the defendants therefrom. He also claimed mesne profits at the rate of Its. 25 a bigha per annum up to 1320 in respect of the 27 bighas 14 kathas delivered up in 1913, and up to the date of the suit in respect of the other lands.
6. The defendants resisted the suit, claiming that they had acquired occupancy rights in all the lands of which they were still in possession, measuring 68 bighas 6 kathas 13 dhurs, having purchased the occupancy right of tenants either privately or in execution of rent decrees before, during and after the terms of their ijara lease, and that, therefore, they could not be ejected. They denied that any of the land was zeriat. They relied on the terms of the lease where-under the plaintiffs, on the expiry of the lease, were to get back the lands purchased by the defendants from tenants on payment to the defendants of the purchase price, and contended that, as no offer of payment had been made within three years of the expiry, the plaintiffs must be taken to have waived their right and were now barred by limitation from enforcing it.
7. With regard to mesne profits the defendants characterised the rates claimed as incorrect and excessive and alleged coercion and undue influence. They denied that there had been any usurpation, since the plaintiffs had failed to pay the purchase price to them.
8. The learned Subordinate Judge came to the conclusion that the greater part of the land in suit was landlord’s bakasht at the date of the lease, though it is difficult to discover on what evidence be based this conclusion. We cannot find sufficient material in the record to justify it. Having formed this opinion he held that under the terms of the lease the defendants could not claim occupancy rights in landlord’s bakasht and that they were mere trespessers after the lease expired, while during the lease, the thikadars stood in the shoes of the proprietor and any purchase made by the former would enure to the benefit of the latter. He held that under Sub-section (3) of Section 22 of the Bengal Tenancy Act, as it stood both before and after the amendment of the Act in 1907, the thikadar could not claim either an occupancy right or any kind of tenancy. With regard to wasilat the learned Subordinate Judge believed the plaintiff’s case that the defendants did not surrender the 27 bighas till the receipt of the notice in February 1 19l3 and granted wasilat for all the rest of the land claimed, except 13 bighas proved to have been purchased in auction, for the three years preceding the suit, that is to say, for 1320–1322. He found that the wasilat must be paid at the rate of Rs. 25 a bigha according to the terms of the lease, as no undue influence or coercion was proved and the bargain ‘was not bard or unconscionable. He allowed Rs. 248 to be deducted from the claim on account of purchase money advanced by the defendants.
9. On appeal to this Court the question was raised whether the lands covered by the kabalas and sale certificates, relied on by the appellants to prove their purchase before and after the term of the lease, could be identified as lying within the ambit of the plaintiff’s Patti, As there was no material for the ascertainment of their identity, two issues were remanded to the lower Court for trial, one relating to the lands purchased before the lease and the other to those bought after it had expired. It seems that an Amin was taken to the lands by the defendants and that this Amin with the help of a Tahsildar, and by inquiries from villagers, came to certain findings as to the identity of the lands. The Amin and the Tahsildar were examined by the lower Court, who relied on their evidence and decided the two issues accordingly. The plaintiff did not produce any witness who could give evidence as to identity.
10. Mr. Kennedy for the appellants bad, when the appeal first came before this Court, classified the lands in their possession under three separate headings :
(1) 31 odd bighas of land in which they acquired raiyati interest prior to the lease of July 6th, 1905;
(2) 15 odd bighas of land in which they acquired raiyati interest during the pendency of the lease; and
(3) 12 odd bighas of land in which they acquired raiyati interest after the expiry of the lease.
11. The findings of the lower Court on remand show that out of the 31 bighas covered by the kabalas and sale certificates showing purchases before 1905, only 20 bighas 18 kathas 13 dhurs are within the plaintiff’s Patti and that out of the 12 bighas covered by the sale certificates granted after 1911, only 2 bighas 6 kathas 10 dhurs fall therein. Mr. Kennedy admits that he can claim the protection of occupancy rights only with regard to the 15 bighas bought during the term of the lease and the 20 bighas 18 kathas 13 dhurs and 2 bighas 6 kathas bought before and after it respectively, in all 38 bighas odd, and that his client will be liable to pay damages for retaining possession of the remainder of the land in suit, amounting to 30 bighas or so. He points out, however, that on the 12th September 1917 the defendants appellant?, having relinquished all the lands in suit pending decision of the appeal, made petition before the Executing Court that notice might be given to the decree-holders, present respondents, that possession, had been given up and such notice was accordingly served. The appellants cannot, therefore, be made liable for damages subsequent to that date.
12. The main question in this appeal deals, then, wish 38 bights within the Patti, which have been purchased by the defendants from tenants who held them as occupancy raiyati, and we have to determine whether the defendants, by the purchase, obtained occupancy rights in the purchased land which will save them from ejectment.
13. The lands are divided into three categories; those purchased before, those purchased during and those purchased after the term of the lease, and each class must be considered separately.
14. First, as regards the 20 bighas 13 kathas 13 dhurs bought “previous to the lease of 1905, namely, in 1894, 1893, 1889, 1891 and 1895: There appears to be no doubt that the defendant’s predecessors, when they made the purchases, were thikadars under their then existing leases, and the question is whether under the terms of Section 22 (3) of the Bengal Tenancy Act, they could, as such, acquire an occupancy right by purchase. Before 1907, Sub-section (3) ran:
(3) A person holding land as an ijaradar or farmer of rents shall not, while so holding, acquire a right of occupancy in any land comprised in his ijara or farm.
15. The question then arose whether the word ” acquire ” was to be taken to relate only to acquisition under the provisions of the Act, or would include acquisition by purchase or other forms of transfer. It was held in Ramrup Mahto v. H. Manners 4 C.L.J. 209 that the word would not include ” purchase ” but was confined to acquisition of the status of occupancy raiyat as described in the Act. The Bengal Tenancy Act was ‘amended in 1307, and, to make it clear that any kind of acquisition of occupancy right was to be barred, the words ” by purchase or otherwise ” were insetted after the word ” acquire ” in Sub-section (3) of Section 22. Then, in 1911, in the case of Raghubir Mahto v. H. Manners 11 Ind. Cas. 389 : 13 C.L.J. 568 Mukerjee, J., questioned the decision in Ramrup Mahto v. H. Manners 4 C.L.J. 209, and expressed the opinion that the amendment merely gave effect to what had always been the law. The fact remains that before the amendment the Court interpreted the sub section as excluding acquisition’ by purchase and the Legislature, by finding it necessary to make the amendment, admitted that it was not clear that such acquisition was included. We must hold, I think, that prior to the Act of 1907 the acquisition by a thihadar of an occupancy right by purchase was not barred by Section 22 (3) and that, therefore, the defendants acquired such a right in the 20 bighas 18 kathas 13 dhurs.
16. Learned Counsel argues that the defendants by their conduct have shown that they did not claim raiyati rights in the land, and throughout treated the holding as belonging to the Maliks He points out that the defendants themselves looked after the survey proceedings and bad these 20 bighas described in the Record of Bights published in 1897 as bakasht thikodar. It is true that the defendants are not recorded as raiyats of the lands, but a Settlement Officer, finding that they were thkadars of the Patti and that they were then selves cultivating the lands would naturally enter them bakosht thikadar, which simply means that they were lease lards when the thikadar was cultivating himself. The amendment of the Act in 1907 could not take away lights of occupancy already vested in the defendants.
17. There is no good evidence that these lands were the landlord’s bakasht at the date of the lease, or that the lands were zeraiat. It is contended that, at the time the lease of 1 05 was executed, the defendants did not set up any kashtkuri right, and, in fact, agreed not to claim such right. There is no evidence that in any previous lease the defendants agreed not to claim the right, and whatever they may have undertaken in this respect in the lease of 1905 could not affect the occupancy right which, we have found, was acquired by purchase previous to 1907, Any such agreement in the later lease would be void under the provisions of Section 178 of the Bengal Tenancy Act.
18. The condition in the lease as to giving up the kasht of any tenant purchased at auction refers only to purchases made during the term of the lease, and not to previous ones.
19. We next come to the acquisitions made during the term of the lease. It is not contended by the appellants that they could acquire an occupancy right by purchase after 1907. Mr. Kennedy urges, however, that though no occupancy right could be obtained, Section 22 (3) does not bar the purchase of a non-occupancy right and further, that, under the conditions of the lease, the defendants can set up a right of occupancy in land purchased “, at auction from the tenants for which on the expiry of the lease the plaintiff has not offered to the defendants the auction purchase money paid by them. It is, I think, plain that the defendants could not acquire occupancy rights in these lands. There is the express prevision in the law against it, whatever may be the terms of the contract. The question to be decided in regard to these lands is whether the purchase gave the defendants non occupancy rights. If it did, the suit to eject the defendants from these lands is clearly barred by limitation under Schedule 111 to the Bengal Tenancy Act.
20. Mr. Kennedy relies on the cases of Jawadul Huq v. Ram Das Saha 24 C. 143 : 1 C.W.N. 166 : 12 Ind. Dec. (N.S.) 761 and Ram A ohan Pol v. Sheikh Rachu 32 C. 386 : 9 C.W.N. 249 F.B. : 1 C.L.J. 1, in contending that where an ijaradar purchases an occupancy holding, such holding does not cease to exist but only the occupancy right is terminated, and also on Shaonandan Singh v. Ramhit Singh (Deo Saran Singh) 13 Ind. Cas. 588 : 15 C.L.J. 647, where it was held held that an ijaradar who has purchased an occupancy holding acquires it as a non-occupancy holding. Both of the two first mentioned cases deal with the purchase of an occupancy right by a co owner arid with Section 22 12, but they decided that it is the occupancy right and not the holding which is extinguished by the transfer: the holding is merely civested of the incidents which attach to an occupancy holding. The principle laid down in those cares would apply in a case under Sub-section (3) which does not bar an ijaradar from, acquiring con-occupancy rights. On the other hand Mr. Singh cites the cases of Raghubar Mohto v. H. Manners 11 Ind. Cas. 389 : 13 C.L.J. 568 and Manners v. Satroghan Das 36 Ind. Cas. 178 : 20 C.W.N. 800. The decision of Mukerjee, J., in the former would seem to with the opinion be formed in Sheonandan Singh v. Ramhit Singh (Leo Saran Singh) 13 Ind. Cas. 588 : 15 C.L.J. 647, cited above, but it is clear that the facts were different. In neither Roghubar Muhto v. H. Manners 11 Ind. Cas. 389 : 13 C.L.J. 568 nor Manners v. Sanoghan Das 36 Ind. Cas. 178 : 20 C.W.N. 800 was the main question the effect of the purchase of an occupancy holding by the ijaradar. In both of them the question seems to have been mainly whether the lease was a cultivating lease or the lease of a tenure and whether occupancy rights had accrued through long possession, though in the former the ijaradar seems to have induced the tenants to give up lands to him. In Manners v. Satroghan Das 13 Ind. Cas. 588 : 15 C.L.J. 647 Sharfuddin, J., considered the case from, the point of view of merger. Now if it was contemplated that when an ijaradar purchases an occupancy holding the occupancy right merges in the ijara, the framers of the Act would surely have found it sufficient to omit the word ‘permanent” from Sub-section (1) of Section 22, which would then have the desired effect in the case of a purchase by ‘an ijaradar. It is clear that Sub-section (3) does not mean that the occupancy right merge;; it. simply means that no occupancy right passes.
21. In Shonandan Singh v. Ramhit Singh (Deo Saran Singh) 13 Ind. Cas. 588 : 15 C.L.J. 647 Mukerjee, J., states: Assume, therefore, for a moment that a person holding land as an ijaradar is not entitled, while so holding, to acquire by purchase a right of occupancy in any land comprised in his ijara. The result is that, if an ijaradar purchases an occupancy holding, he acquires it as a non-occupancy holding.”
22. In the present case, as was held in the one just cited, the defendants’ character as purchasers conferred upon them the status of raiyats, but not of occupancy raiyats. It may be contrary to the intention of the framers of the Act that landlords and tenure-holders should be allowed to acquire raiyati rights, but until Sub-section (3; is amended it cannot prevent the acquisition of non-occupancy rights.
23. Having found, then, that the defendants were, on the expiry of the lease, non-occupancy raiyats of these 15 bighas, we must hold that under Schedule III to the Bengal Tenancy Act, the suit to eject them from those lands is out of time.
24. With regard to the undertaking in the kabuliyat to give up the kasht lands purchased in execution of rent suits against the tenants on receipt of the purchase money, and not to set up a right of occupancy in such lands except where the plaintiff failed to offer to pay the purchase money, it need only be remarked that the plaintiffs up to the date of the suit had not offered payment of the purchase money. The reason they give is that there was so mush wisilat due from the defendants that it was only necessary to set off the purchase money. That reason, however, was not a good one. They were bound to make the offer if they wanted the lands.
25. With regard to the last class of lands, those purchased after the expiry of the lease in execution of decrees for rent which fell due during the lease, there is, I think, no doubt that the defendants must be held to have acquired occupancy rights, for Section 22 (3) relates specifically only to acquisitions of occupancy rights made while still holding the ijira.
26. We hold, therefore, that, the defendants acquired occupancy rights in the lands purchased before 1905 and after 1911, and that they cannot now be ejected from the lands purchased during the lease, in which they have non occupancy rights, because the suit was instituted beyond time.
27. The last point to be decided is that of wasilat or damages. Under the terms of the kabuliyat the defendants’ predecessors undertook to pay mesne “profits at the rate of Rs. 25 a bigha per annum if, on the expiry of the term of the lease, they did not give up possession of the lands and if they set up any claim to a right of occupancy in respect of any lands other than lands purchased at auction from tenants for which the lessors had not offered payment according to the terms of the lease.
28. So far as concerns the lands in which the defendants have been found to have acquired occupancy rights before the lease was executed, it is clear that no mesne profits or damages are payable, the lease referred only to occupancy holdings purchased during its term. The defendants have a right to remain in possession of those lands. Any agreement in the lease not to set up right of occupancy in lands in which such right had accrued would be void under Section 178, Bengal Tenancy Act.
29. We have found that, with regard to occupancy holdings purchased during the term of the lease, the suit to eject the defendants is barred by limitation, they being in possession as non occupancy raiyats. The defendants, however, undertook to give up these lands on the expiry of the lease if the plaintiff offered payment of the sum paid by the defendants as auction-purchasers, and it was agreed that the rate of Rs. 25 per bigha should not be payable by the defendants in respect of the lands if the lessor did not make payment of the purchase price. The lessor has Dot offered payment up till the date of the institution of the suit, which was over three years after the expiry of the lease. The defendants contend that this offer of payment was not made within a reasonable time and that the lessor must be taken to have elected not to exercise his option.
30. What is a reasonable time depends on the facts in every case, but it is not necessary for us to decide the question in this case, since we have found that the defendants were up to the date of the suit in rightful possession as non occupancy raiyats and cannot be ejected, and offer of payment of the purchase-money had not up till then been made.
31. For lands in which occupancy rights have been acquired by purchase after the date of the suit mesne profits will of course not be payable since before the expiry of the lease and the date of the acquisition, such lands were in possession of occupancy raiyats. Thus we find that no mesne profits are payable in respect of the raiyati lands acquired by the defendants before, during, and after the lease, that is to gay, an area of 33 bighas 4 kathas 13 dhurs.
32. For the remaining area cut of the total of the 68 bighas 6 kathas 13 dhurs, namely, 30 bighas 2 kathas, Mr. Kennedy admits that wasilat will have to be paid up to the date when notice of abandonment of the lands was given to the plaintiff, namely, up to 12th September 1917, but contends that the rate of Rs. 25 per bigha per annum is far too high and was fixed as a penalty.
33. The learned Subordinate Judge has found that there was no undue influence or coercion and that the bargain to pay at this rate was not hard and unconscionable.
34. The plaintiff’s witnesses themselves have deposed that the highest rate for land in the village is Rs. 10 par bigha per annum and that the usual rate is Rs 8, so that it is clear that the rate of mesne profits stipulated for is far above the ordinary rate. The defendants contracted to hold the land for the term of the lease paying an annual rental of Rs. 672-116 and to deliver up the land under certain conditions on the expiry of five years. If they failed to deliver up possession or made any claim, they were to pay mesne profits to the lessor at the rate of Rs. 25 per bigha, that is to say, they were to pay Rs. 2,475 a year for the 99 bighas. The contract to pay mesne profits is a secondary one intended to secure the fulfilment of the primary contract to relinquish the land on the expiry of the lease: it may be just and reasonable that the lessor should be thus secured, but the high rate agreed on is clearly by way of a penalty and it is open to this Court to award reasonable compensation in lieu of such an excessive rate.
35. We are of opinion that the highest rate of rent for land in the village as shown by the plaintiff’s witnesses would be a fair rate in this case and we accordingly decide that the defendants should pay at the rate of Rs. 10 per bigha per annum for the 30 bighas 2 kathas.
36. As a result the appeal will be allowed in part, and the decree of the lower Court will be modified to the extent that the plaintiff will be declared entitled to recover possession of the said 30 bighas 2 kathas of the lands mentioned in schedule II and will be allowed wasilat at the rate of Rs. 10 per bigha per annum for the 27 bighas of land of schedule III for 1320, and for the 30 bighas 2 kathas out of the lands mentioned in schedule II, wasilat at the same rate for three years from 1320 to 1322 F.S. There will be no deduction on account of purchase money paid by the defendants.
37. The parties will get costs in both Courts proportionate to their success.
Das, J.
38. I agree.