JUDGMENT
Sarjoo Prosad, J.
1. This Letters Patent Appeal is directed against a judgment of Ray J. (as he then was). The only point which emerges for decision in this appeal is whether the plaintiffs are entitled to permanent ‘shikmi’ tenancy right in the suit lands which cover an area of 1.20 acres as recorded in the cadastral survey, bearing a rental of Rs. 6/3/-. The lands have been recorded as ‘khas dakhli’ lands of defendants 1 to 4, but in the earlier survey the lands were recorded in the name of one Natha Satapathy as a ‘shikmi’ tenant under these defendants. The survey records also show that the lands appertain to ‘bazyaftidar sthiti-ban’ holding of the defendants.
2. The suit to which this appeal relates was filed by the plaintiffs now respondents before us, for’ declaration that they had permanent ‘shikmi’ intet est in the lands in suit, and also for confirmation of possession. The plaintiffs’ case was that the land in question had been settled by the ancestor of defendants 1 to 4, one Dinabandhu Kar, with the plaintiffs’ ancestor, one Shyam Charan Satapathy in Chaitra 1296 (Oriya Sambat) in permanent ‘shikmi’ interest, and Natha Satapathy recorded in the revisional survey was the son of the original settlee. It appears that in 1906 there was liti-mation between the descendants of Dinabandhu and the descendants of Shyam Satapathy leading to a suit for damages which resulted in a compromise.
The plaintiffs alleged that by virtue of this compromise Natha Satapathy was recognised as a permanent ‘shikmi’ tenant of the lands, and he was accordingly so recorded in the revisional survey proceedings which followed thereafter. The cadastral survey operations came in 1928 when the lands were recorded as ‘khas dakhli’ lands of defendants 1 to 4, and the plaintiffs challenged this entry as collusive. They alleged that in spite of this entry, they continued to be in possession of the lands but the defendants interfered with their possession on the basis of the survey entry and a collusive compromise decree obtained by them against defendant 5, who was originally a ‘bhag’ tenant of the plaintiffs. This was the alleged cause of action for the suit.
3. The suit was contested by defendants 2 4 only who denied that the lands were filed in permanent ‘shikmi’ tenancy with (sic) Satapathy as alleged or with the ancestor of the plaintiffs; and their case was that the defendants were in possession of the lands; and that they had obtained a valid compromise decree against defendants 5 and 6, who were in possession, but who had since given up possession thereof.
4. The trial Court found that the plaintiffs had permanent tenancy rights as ‘shikmi’ tenants in the disputed lands. The lower appellate Court reversed that decision and held that although the plaintiffs were ‘shikmi’ tenants under the defendants, they had no permanent rights in the lands, and no such right could validly be conferred upon them. The appellate Court, therefore, modified the decree and held that the plaintiffs were simply entitled to a declaration that they were ‘shikmi’ tenants of the lands.
5. Ray J. disagreed with the decision of the Court of appeal below and found in agreement with the trial Court that the plaintiffs were permanent 'shikmi' tenants of the lands. The reasons which led his Lordship to come to the conclusion were mainly threefold: (1) that on a perusal of exhibits 1 and 2 had no doubt in his mind that "the recitals in them are mere acknowledgments of a previously existing permanent tenancy"; (2) "that the defendants' tenure is one of a 'Bajiapatidar'" and " 'Bajiapatidar' are not 'raiyats' within the definition assigned to the word in the successive Tenancy Acts. For convenience 'sake, they have been classified as 'raiyats' for certain purposes. Accordingly their undertenants have been nomenclatured as under-raiyats"; and (3) that the decision in -- 'Shankar Rao. Dagadujirao v. Sambhu Nath', AIR 1940 PC 192 (A) "is a direct authority in which tenancies of arable lands of which the origin had been lost in antiquity were inferred to be permanent from circumstances, such as, heritability, transferataility, smallness of rent and other circumstances of similar nature." The judgment under appeal also suggests that the plaintiffs seem to have acquired a limited interest of a permanent tenant under the defendants by adverse possession.
6. If I may say so with respect, none of the above reasons given by the learned Judge can bear the test of scrutiny. The documents, exhibits 1 and 2, were construed by the lower appellate Court who came to the finding that there was nothing in those documents to indicate that the plaintiffs or their ancestors had any permanent right from before the execution, of these documents. There was undoubtedly a clause in the documents to the effect that Natha Satapathy would possess the disputed lands as before, and that Bhikari Kar, Eiswanath Kar and Farm Kar and others could not eject him and his heirs. The Court below rightly pointed out that if the documents themselves purported to create a permanent interest in the lands they required registration and could not otherwise be used in proof of such title. Ray J. on a construction of these documents held that the recitals proved an acknowledgment of a previously existing tenancy.
The original document of settlement set up by the plaintiffs which is alleged to have been made sometime in the Oriya year 1296 corresponding to 1857 A. D. has not been produced. If that document had been produced, it would have been undoubtedly treated as a document of title and the construction of which would be a question of law; but it is difficult to hold that these compromise petitions, even assuming them to be mere acknowledgments of a pre-existing title, would constitute documents of title so as to entitle the Court of second appeal to construe them afresh. Be that as it may even if it is held, as it was done by Ray J., that there was such an acknowledgment of a permanent ‘shikmi’ tenancy right, it will have to be seen whether such a right could be supported in law.
Section 237, Orissa Tenancy Act, provides that nothing in this Act shall affect” any custom, usage or customary right not inconsistent with, or not expressly or by necessary implication modified or abolished by its provisions. No such custom, usage or customary right has been pleaded in this case. It, therefore, requires examination whether irrespective of custom a ‘shikmi’ tenant is entitled to permanent rights at all. The relevant sections which deal with under-raiyats or ‘shikmi’ tenants are Sections 56 and 57 of the Act. Section 56 specifies the limit of rent recoverable from under-raiyats, and Section 57 deals with the restriction on ejectment of under-raiyats. It is provided under this section that an under-raiyat shall not be liable to be ejected by his landlord except on the expiration of the term of a written lease, and where he holds otherwise than under a written lease at the end of the agricultural year within which a notice to quit as prescribed has been served upon him by the landlord.
The proviso to Section 56 further contemplates that the ‘shikmidar’ or the under-raiyat could hold land under a ‘bazyaftidar’ and in such a case the percentage of rent payable by the former was to be calculated with reference to the average of cash rent paid by occupancy raiyats for similar lands in the village. There is nothing in these sections to indicate that an under-raiyat holding under a ‘bazyaftidar’ can acquire permanent tenancy rights in the lands held by him. If this were so, then specific provision would have been made for this purpose as an important incident of the tenancy in Chap. VIII in which Sections 56 and 57 occur. The status of a ‘bazyaftidar’ has been defined in Section 6 of the Act.
It should be remembered that the defendants are recorded as “bazyaftidar raiyats”, and Clause (ii) of the section says that every ‘bazyaftidar’ who is recorded in any such re-cord of rights as a ‘bazyaftidar raiyat’, and his successors in interest, shall be deemed to be a raiyat for the purposes of this Act. It would not be, therefore, correct to observe, as held by Ray J., that ‘bazyaftidars’ were not raiyats within the definition of the successive Tenancy Acts. Clause (iii) of this section further provides that every sub-proprietor shall be deemed to be a tenure-holder for the purposes of Sections 14 to 20, 99, 100, and Chap. XVI, and to be a permanent tenure-holder for the purposes of Section 74. It is not relevant for our present purpose to examine all these sections. But it is significant that Sections 56 and 57 do not occur in this clause, and, therefore, it is apparent that the sub-proprietor or the ‘bazyaftidar’ is not to be regarded as tenure-holder, for the purposes of these sections, or, in other words, vis-a-vis the under-raiyat or the shikmi’ raiyat.
The status of the defendants as ‘bazyaftidars’ continued to be the status of a raiyat and not that of a tenure-holder vis-a-vis the plaintiffs who were holding under them. The plaintiffs were thus under-raiyats and were governed by the incidents of such a tenancy. In view of the provisions of the Act, I regret I cannot subscribe to the observations of the learned Judge. I am also unable to accept the position that an “occupancy right of an under-raiyat” was not inconsistent with the provisions of the Orissa Tenancy Act. As I have shown, in the absence of any specific provision or in the absence of any custom or usage to that effect, the plaintiffs, who are merely under-raiyats could not claim any right of occupancy or permanence. The mere fact of acknowledgment of such a right in the two documents aforesaid could not confer any such right upon them. The saving provisions mentioned in Chap. XVII of the Act also do not provide for the validity of such a contract. If the intention of the law was to save such a pre-existing right, if any, the law would have provided for that contingency because all the incidents of an under-raiyat have been defined in the Act; and it is impossible to hold that any peculiar or special incident could be claimed by any person falling in the class of under-raiyats in derogation of the law.
I may also point out that it was not for the defendants to support the correctness of the cadastral survey records recording the lands as ‘khas dakhli’ lands of the defendants but for the plaintiffs to rebut the same and prove their case of permanent tenancy. The above reasons, therefore, which found favour with the learned Judge do not appeal to me at all. The decision of the Privy Council as reported in AIR 1940 PC 192 (A), referred to above, is equally unhelpful. In the first place, even on plaintiffs’, showing the origin of their tenancy was not “lost in antiquity.” In the second place, the quotation from the judgment itself indicates that the principle laid down is not what the learned Judge sought to spell out. The quotation runs thus :
“Their Lordships would not willingly cast doubt upon the principle that the fact that a tenancy is for agricultural purposes does not ‘prima facie’ indicate that it is permanent or indeed that it is more than an annual tenancy. The inference of permanence is an inference which it is difficult to make and which requires the presence of circumstances explicable when taken as a whole only on the hypothesis of permanence. A full exposition of the principles upon which such inference is to be made or rejected has been given by the Board in previous cases and need not here be repeated; — ‘Secy, of State v. Luchmeswar Singh’, 16 Ind App 6 (PC) (B) and — ‘Nabakumari Debi v. Be-hari Lal Sen’, 34 Ind App 160 (PC) (C).
7. I have purposely underlined (here in ‘ ‘) the words in the quotation. Even the record of rights of the previous survey does not support the claim set up by the plaintiffs. Natha Satapathy was merely recorded as a ‘shikmidar’ in respect of the disputed lands in the Provincial Survey which came several years after the compromises on which the plaintiffs relied. It is also evidently wrong to assume that any permanent tenancy right could be acquired by adverse possession. The plaintiffs came to Court with the definite case of ‘shikmi’ tenancy right of a permanent character, and if, as already discussed, no such right was available to them under the law, they could not get such a right by prescription.
8. I, therefore, feel impelled to hold that the decision of the lower appellate Court was correct and should be restored and that of Ray J. should be set aside. The appeal is accordingly allowed but, as there has been no appearance for the respondents, there will be no order for costs.
Reuben, C.J.
9. I agree.