JUDGMENT
1. These four appeals arise out of four suits in ejectment tried analogously in the Court of first instance. The plaintiff and the pro forma defendants purchased the entire 16 annas of the estate called Taluqa Minpur Zemindary, bearing Touzi No. 423 in Pargana Tisania, District Cuttack. The lands in suit appertain to Mouza Injanpur, one of the Mouzas comprised within the said Taluqa. By an award of Panchapet, dated the 26th March 1873, the plaintiff’s ancestor got by partition with the ancestors of the pro forma defendants the Mouza Injanpur allotted to them, and since then they are in possession of the entire 16 annas of the said Mouza. The Zemindar, to whom the Mouza originally belonged previous to the purchase by the plaintiff and his co-sharers, had granted the Mouza as Khore poshak for maintenance to a relation of his, called Jodhi Mangraj. The Mouza thus became a sikmi tenure of Jodhi Mangraj. In the family of Jodhi Mangraj, the law of lineal primogeniture prevailed, whereby the senior branch of the family held the entire Mouza as sikmi tenure-holder and the lands in suit were given to the ancestors of the principal defendants, the junior members of the family, by way of maintenance at a nominal rental of Re. 1 per man.
2. In 1903 the plaintiff obtained a rent decree against the then tenure-holder, Bishambhar Dayal, for arrears of rent then due, and in execution of the said decree, the tenure was brought to gale under Bengal Act VIII of 1865 and purchased by the plaintiff on 18th Marsh 1905. The case of the plaintiff is that he purchased the tenure free from all incumbrances and the lands in suit held by the principal defendants are an incumbrance on the tenure, which under Section 16 of Act VIII of 1865 the plaintiff is entitled to avoid. Consequently the plaintiff brought the present suit for recovery of possession with mesne profits. In the alternative the plaintiff prayed that if it be held that he is not entitled to recover khas possession of the land, then a fair and equitable rent according to the prevailing rate be assessed on the lands in suit.
3. The principal defendants in their written statement pleaded that the sale of the tenure under Act VIII of 1865 was invalid and illegal and the plaintiff did not acquire any title thereby, inasmuch as Jodhi Mangraj and his descendants, to whom the Mauza was granted as khore poshak, were the sikmi Zemindars of the Mauza paying revenue thereof due to Government through the Zemindar of the Mahal and that no relationship of landlord and tenant existed between them and the Zemindar of the Mahal. They also pleaded that they paid rent for the lands in suit to the plaintiff at a rate which remained uniform for over 50 years, and hence they are not liable to any assessment of fair and equitable rent, and thirdly, they contended that even if it be conceded that the plaintiff purchased the sikmi Zemindary right, he himself being a Mahal Zemindar, the sikmi right ceased to exist and the defendants having become intermediate tenure-holders or parja (tenants) under the plaintiff, the latter cannot get any other relief except rent.
4. The contentions of the defendants gave rise to several issues, the principal ones being
Is the plaintiff’s alleged purchase of the shikmi Zemindary legal and valid, and could the property be sold under Act VIII of 1865? (Issue No. 4).
Is the disputed property an incumbrance under the law? Is the plaintiff entitled to avoid it by virtue of his auction-purchase? (Issue No. 5).
Is the plaintiff entitled to recover khas possession of the property in suit? (Issue No. 6).
To what relief, if any, is the plaintiff entitled?” (Issue No. 7).
Issues Nos. 1, 2 and 3 relating to limitation, estoppel and maintainability of the suit need not be mentioned, for they do not now arise.
5. The Subordinate Judge decided all the issues in favour of the plaintiff. With regard to the status of the defendants he held that they were under-tenure-holders and not raiyats or hereditary and resident cultivators and that their interest in the lands was an incumbrance under Section 16 of the Act, which the plaintiff was entitled to avoid. The Subordinate Judge accordingly decreed the claim of the plaintiff.
6. On appeal, the District Judge disagreed with the Subordinate Judge on his finding as to the status of the defendants, and held that the defendants were resident and hereditary cultivators and belonged to a class for the protection of which the clause in Section 16 of Act VIII of 1865 was expressly designed, and dismissed the suits of the plaintiff. The plaintiff has, therefore, come to us in second appeal.
7. In the settlement record, which was finally published on the 13th August 1897, the defendants in the several suits were recorded in respect of the lands held by them to have the status of “biratharan kasht.” kasht,” In the last revisional settlement khatian, which was finally published on 18th November 1911, the status of the defendants was recorded to be that of madhya sattadhikari babat bradarana khud-katht that is, intermediate tenure-holders in respect of biratharana khudkasht.
8. The District Judge has shown that in Second Appeal No. 25 the defendants have 13’68 acres, out of which 11-47 acres are in their khas cultivation; in Second Appeal No. 26, the defendants hold 17″66 acres, out of which 9’66 are in their khas possession and the rest is held by tenants, who pay half produce rents; in Second Appeal No. 27, the defendants hold 8’46 acres out of which 6 acres are in their khas possession, and in Second Appeal No. 28 the defendants hold 30-18 acres, out of which 12’10 acres are in their khas possession and the remaining are held by tenants paying cash and bhaoli rents. The purpose of the tenancy, for which the land was given originally to the defendants, is not known. The small areas held by the defendants, greater portions of which are in their khas possession, as well as the fact that the defendants have their dwelling houses also on the portions of the holding, go to show that the land must have been originally let out to them for purposes of cultivation. The Subordinate Judge has also held that the “defendants have their dwelling houses on some portions and cultivate some other petitions and realise dhooli bhag or cash rent from sub tenants in occupation of yet other portions.”
9. The District Judge was hence justified in holding that the defendants were resident and hereditary holders in respect of the disputed lands and that the entry of their status in the last revisional Survey Record of Rights as intermediate tenure holders is incorrect and has been sufficiently rebutted by the evidence in the case. This is a finding of fact and cannot be challenged in second appeal.
10. It is noteworthy that in both the Settlement Records of 1897 and 1911, the entry is ‘khudkasht” in the former as ‘biratharan khudkasht” and in the latter as “intermediate tenure-holders in respect of biratharan khudkasht.” The word ‘ khudkasht’ in the Regulation relating to the permanent settlement applied to raiyats. The permanent tenants settled in village were called khudkasht raiyats, that is, raiyats cultivating the land of their own village or the village in which they resided. They were distinguished from the Paikasht tenants, that is, the temporary tenants, residents of another or neighbouring villages. The former were protested from eviction and the latter were treated as tenants-at will: tide Field’s Introduction to Regulations, pages 24, 25 and 40. Regulation VIII of 1793 clearly prohibited the proprietors of lands or farmers or persons acting under their authority to cancel pattas of khudkasht raiyats except upon proof that they were obtained by collusion. The rights of the khudkasht raiyats were accordingly protected on sales of patni taluqas by clause 3 of Section 11 of Regulation VIII of 1819, and on sales of under-tenures sold for arrears of rent by Section 16 of Act VIII of 1865. In sales under both these Acts the purchaser acquires the property free from incumbrance but he is not entitled ” to eject khudkasht raiyats or resident and hereditary cultivators.” In the case of Koontee Debee v. Hirdoy Nath Durreepa 16 W.R. 206 as well as in the case of Jogeshwar Mazumdar v. Abed Mahomed Sirkar 3 C.W.N. 13 relied upon by the appellant, the finding of fact was that the persons claiming the benefit of the Patni Regulation and the Rent Recovery Act respectively were not proved to be khudkasht raiyats that is resident and hereditary cultivators of the lands in suit and, therefore, those authorities do not apply to the present case, where the finding of fact of the District Judge is that the defendants were khudkasht or resident hereditary cultivators. The direst authority applicable to the present case is that of Sheikh Mahomed Assanoollah Chowdhry v. Shamshir Ali 4 C.L.R. 165 where it was held that the defendants having for more than 12 years cleared and cultivated the land and built houses thereon were hereditary and resident cultivators and their interest was protected from the operation of Section 16 of Act VIII of 1865. The finding of the Courts below that the defendants are resident and hereditary cultivators and have dwelling houses on portions of the land and the description of the lands in suit as khudkasht in the Survey Record of Rights expressly bring the defendants within the meaning of the words khudkasht or resident and hereditary cultivators ” in Section 16 of the Act. The plaintiff is not, therefore, entitled to recover khas possession and the decision of the lower Appellate Court must, therefore, be upheld.
11. It is, however, contended on behalf of the appellant that in case the plaintiff was not entitled to recover khas possession, the Court below ought to have determined fair and equitable rents payable by the defend-ants to the plaintiff in respect of the lands in suit, as contained in relief of the plaint. This contention must prevail. The Subordinate Judge in deciding issue No. 1 held that the plaintiff was entitled to make the alternative prayer for determination of fair and equitable rent in the present suits. In the lower Appellate Court the defendants did not contest the finding of the Subordinate Judge on that point and the only contention urged by them was with respect to Issue No. 5 as to the right of the plaintiff to recover khas possession. The finding of the Subordinate Judge, therefore, became final. The point has been raised by the plaintiff in the grounds of appeal before us. The learned Vakil on behalf of the respondents does not seriously dispute the plaintiff’s right to an assessment of fair and equitable rent. The case must, therefore, go back to the Court of the Subordinate Judge for determination of fair and equitable rent payable by the defendants to the plaintiff.
12. On the principal question these appeals have failed and hence the respondents are entitled to their costs.