JUDGMENT
1. This is an appeal on behalf of the plaintiff in an action for ejectment. The plaintiff alleged that Mr. Charles Fox, originally described as defendant No. 12, was his tenant in respect of the disputed land in which he had no guzashta or transferable right or any sort of title except the right to cultivate it. The plaintiff further alleged that defendant No. 12 had from time to time alienated portions of the land comprised in his tenancy, to the other defendant and that on the 9th August 1902, he completely divested himself of all this interest in the land with the result that he ceased to be the tenant of the plaintiff and the other defendants who came into occupation were trespassers without any title. In this view of the matter, he prayed that a decree for ejectment might be made against defendants 1 to 11, the transferees, who, according to him, held possession wrongfully. The defendants filed two written statements, one on behalf of Mr. Fox and the other on behalf of the transferees. Both alleged that defendant No. 12 had guzashta light in the land in dispute and had full right to transfer the same. They further pleaded that defendant No. 12 and other tenants have and had a transferable right which they were competent to sell in any way they chose without the permission and consent of the landlord. They went even further and asserted that by usage, custom and practice, defendant No. 12 had full right to transfer the whole or a part of the land of his tenancy. Upon this state of the pleadings, nine issues wore raised, of which we need mention only three for our present purposes, namely the fourth, fifth and sixth which were in the following terms: 4. Had the defendant No. 13, the vendor of the defendants 1 to 12, guzashta right or transferable right of occupancy in the land in suit?
5. Had the defendant No. 13 and have the other raiyats of Mauza Ghogha the right to transfer their holdings without the landlord’s consent?
6. Is there any custom or local usage in Mauza Ghogha for riayats to transfer their guzashta rights in whole or part without the landlord’s consent?”
2. In the Court of first instance, the Subordinate Judge found that Mr. Fox had no transferable right of occupancy in the land in suit and that consequently the transferees from him had acquired no valid title to the land claimed by the plaintiff. In the course of the hearing before the Subordinate Judge, however, the defendants set up an additional plea. They stated that as it had been established upon the evidence that Mr. Fox had paid rent at an uniform rate for twenty years, they were entitled to the benefit of the presumption which arises under Section 50, Sub-section (2) of the Bengal Tenancy Act. The Subordinate Judge went into this part of the case also, but he came to the conclusion that the presumption relied upon was of no avail to the defendants because it was clear from the evidence and the circumstances of the case that the holding came into existence sometime after the Permanent Settlement. In this view of the matter, the Subordinate Judge decreed the suit with costs against the defendants. Two appeals were then preferred to the District Judge, one by Mr. Charles Fox, and the other by the transferees. The learned District Judge upon the hearing of the appeals came to the conclusion that the presumption mentioned in Section 50 Sub-section (2) of the Bengal Tenancy Act was applicable to the case; but inasmuch as this presumption had not been pleaded in the written statement and as the plaintiff had not been given a fair chance of rebutting the presumption, he gave the plaintiff an opportunity to adduce fresh evidence. The plaintiff expressed his willingness to have Mr. Fox examined upon this question of the origin of the tenancy and Mr. Fox subsequently gave his evidence. The learned District Judge upon this evidence held that the onus which lay upon the plaintiff of rebutting the presumption had not been discharged. He, therefore, allowed the appeal and dismissed the suit with costs. The plaintiff has now appealed to this Court; and on his behalf the decision of the Court of appeal below has been challenged substantially on two grounds, namely first, that Section 50, Sub-section (2) of the Bengal Tenancy Act, has no application, inasmuch as the present suit is not one under the Bengal Tenancy Act, and secondly, that the defendants ought not to be allowed to rely upon the presumption or to set up any case of permanent tenancy, inasmuch as this was contradictory to the position which they had deliberately taken up in their written statements in the Court of first instance. In answer to this argument it has been contended by the learned Counsel for the respondents, that although the present suit is not one under the Bengal Tenancy Act, and consequently Section 50, Sub-section (2), has no direct application, yet from the facts found by the learned District Judge, the inference follows that Mr. Fox held a permanent tenancy and that he was entitled to transfer, either in whole or in part, the lands comprised therein.
3. As regards the first ground taken on behalf of the appellant, there can be no possible question that the view taken by the Court below is erroneous and cannot be supported. Before the learned District Judge, reliance was placed on behalf of the plaintiff upon the judgment of this Court in the case of Rasamey Purkait v. Srinath Moyra 7 C.W.N. 132, in which it was ruled that the application of Section 50 of the Bengal Tenancy Act is limited to suits or proceedings under the Bengal Tenancy Act.
4. The learned District Judge, however, distinguished that case on the ground that in the case before him, the original tenant and the transferees were parties to the litigation, whereas in the case relied upon, the action was brought against transferrers alone on the allegation that they were trespassers. In our opinion, this circumstance does not render the principle of that decision inapplicable to the case before us. So far as the tenant defendants are concerned and so far also as the transferees are concerned the present suit can in no sense be treated as a suit under the Bengal Tenancy Act. There is no provision in the Bengal Tenancy Act which provides for a suit of this description. No doubt, it is conceivable that Section 50, Sub-section (2), may be applicable to a case of a transfer by a tenant of his interest in the tenancy. To take one illustration only, if an occupancy raiyat transferred his interest and the landlord brought a suit for ejectment against the transferee on the ground that he had contravened the provisions of Section 25 of the Bengal Tenancy Act, that would be a suit under the provisions of the Bengal Tenancy Act. In such a case as that, it might be open to the transferee to take up the position that what he had purchased was not an occupancy holding, but a holding at a fixed rate of rent; and he might under these circumstances rely upon the provisions of Section 50 Sub-section (2) of the Bengal Tenancy Act. But when, as in the case before us, the landlord seeks to eject the transferees on the ground that they were trespassers, and does not practically seek any relief at all against the tenant, and when it is found that the suit is brought under the general law and not under any special provision of the Bengal Tenancy Act, it is impossible to hold that Section 50 has an application. This view is amply borne out by the decision of this Court in the case of Sarat Chandra Ghose v. Shywm Chand Bingha 10 C.W.N. 930. it follows, therefore, that the foundation upon which the judgment of the learned Distinct Judge is based, cannot be supported, and the first contention of the appellant must prevail.
5. The question remains, however, whether it is possible to support the judgment now under appeal upon any other grounds deducible from the facts found by the learned District Judge. The learned Counsel for the respondent has contended that he has found in substance facts which justify the inference that the tenancy held by Mr. Fox was in the nature of a permanent tenancy. We are unable to accept this contention as well founded. No question of a permanent tenancy was raised in any of the issues. The evidence of Mr. Fox upon which the concluding portion of the judgment of the District Judge is based was taken, not for the purpose of establishing a permanent tenancy, but only with a view to enable the plaintiff to rebut any possible presumption under Section 50, Sub-section (2), of the Bengal Tenancy Act. But apart from this, we are of opinion that the defendants are not entitled in the face of the allegations which they deliberately made in their written statements, to raise the question of either a permanent tenancy or a tenancy in the nature of a raiyati holding at a fixed rate of rent. We have anxiously considered whether it would be right, under the circumstances of the present case, to allow the defendants an opportunity to prove the case which they now seek to set up for the first time; and we have come to the conclusion that we ought not to allow them that opportunity.
6. The result, therefore, is that this appeal must be allowed, the decision of the District Judge set aside and the decree of the Court of first instance restored. This order will carry costs in all the Courts. We direct, however, that there will be no decree for costs in any Court against Mr. Fox or his representatives for although he nominally defended the suit in the Court of first instance, and although he was a party appellant in the Court below, there is no question that the real litigants throughout have been the transferees against whom alone the decree for costs will be made.
