Judgement Appeal from a judgment of the High Court (May 17, 1905) reversing a decree of the Subordinate Judge of Tirhut (September 18, 1903). The appellants sued to recover possession of two parcels of land, consisting of 156 bighas and 25 bighas respectively, alleging that the tenancy created by two leases granted in 1891 and 1892, under which the defendant Dalgliesh was in possession, had expired. The appellants were the owners of the lands in suit, which are situated in mouzah Ballipura, and fell with others to the share of their grandfather, Bansidhar, on a partition thereof. It was admitted that the smaller of the said parcels of land was khudkasht or zirat land of the appellants. One of the principal questions on the appeal was whether the larger parcel consisting of 156 bighas was land of the same class. The Subordinate Judge answered this question in the affirmative and the High Court in the negative. Sect. 116 of the Bengal Tenancy Act is as follows— " Nothing in chapter 5 shall confer a right of occupancy in, and nothing in chapter 6 shall apply to a proprietors private lands known in Bengal as khamar, nij or nij-jot, and in Behar as zirat nij, sir or khamat, where any such land is held under a lease for a term of years, or under a lease from year to year.1 Dalgliesh, the defendant, since deceased and represented by the respondents, was a manufacturer of indigo and carried on business at the Bandhar factory. This factory was for many years in the same hands as certain other like factories, and the defendant in his written statement claimed that the various persons and firms who had from time to time carried on business, and described in his written statement as the proprietors of the Hathowri indigo concern, were his predecessors in title, and that he and they had acquired an occupancy right in the said 156 bighas. It appeared that the business had changed hands frequently, and the defendant was said to have become interested in it in 1891. The lease of 1891 above mentioned was granted on October 28, 1891, to F. Wood and three others and comprised the larger of the two parcels; the lease of 1892 was of the smaller parcel and was granted to three of the last-mentioned lessees and two others, including the defendant. The lease of 1891 above mentioned was granted on October 28, 1891, to F. Wood and three others and comprised the larger of the two parcels; the lease of 1892 was of the smaller parcel and was granted to three of the last-mentioned lessees and two others, including the defendant. Both leases expired in September, 1901. The defendant entered into possession of the lands under an agreement with the lessees. The rents were paid either by him or them, and he was in occupation at the date of suit. Meanwhile the survey of the district took place, and it was held by the Settlement Officer that the lands should be recorded as the khudkasht property of the landlords, and on July 17, 1899, the register was made out accordingly. Subsequently on the application of the defendant a retrial of the matter took place, with the result that an order was made on April 18, 1900, under which both the said parcels of land, namely, 156 and 25 bighas, were alike registered as the kaemi land of the tenant. Having procured this decision of the Settlement Officer, the defendant refused to deliver up possession on expiry of the leases in accordance with their terms, claiming that he and the various proprietors for the time being of the indigo business were and had been in possession of the land as occupancy raiyats. The plaint prayed for a declaration that the said order of April 18, 1900, was wrong and illegal, and for possession of both parcels. The defendant Dalgliesh pleaded that the suit was not tenable without a legal notice to quit being first served on him; that the land in question had been held by his predecessors in title and by him under kasht or direct cultivation for over fifty years, and they had acquired a right of occupancy therein; that as regards the 25 bighas of land, being parcel No. 2, he did not claim similar rights, but submitted his right to a legal notice to quit; that the order of the Settlement Officer of April 18, 1900, was final and binding; and that about the year 1849 a suit was instituted by the appellants ancestors against the Hathowri indigo concern for rent of the lands leased to them, in which suit the plaintiffs therein treated the same as the kasht lands of the then defendants. The judgment of the Subordinate Judge was as follows " As regards the 25 bighas of land which also form a part of the suit, and in respect of which also that defendants kashtkari right has been declared by the Settlement Officer in the record of rights, the defendant admits that they are the khudkasht or the private lands of the plaintiffs. The lease of February 10, 1892, by which these lands were let out to the defendant was for a period of ten years from 1299 to 1308. But the defendant claims a right of occupancy in these lands also. But under s. 116 of the Bengal Tenancy Act the defendant is neither an occupancy nor a non-occupancy raiyat in respect of this land. The term of their lease has also expired." As to the 156 bighas he pointed out that the lands were described in a lease of 1859 as zerait Ballipura, and that subsequent documents " clearly shewed that prior to March, 1883, the proprietors of the mouzah Ballipura declared their lands in the suit to be their zerait lands, and the proprietors of the Hathowri indigo concern understood them to be so," and he held that there was no difference between the words zerait and kasht. Consequently he concluded that under the Bengal Tenancy Act, 1885, " the defendant cannot acquire right of occupancy in respect of the lands in suit, nor do the provisions of chapter 6 of the Act apply to him." The Subordinate Judge proceeded to consider the question whether the defendant had a right to retain the lands, assuming that they were not the zerait or kasht lands of the plaintiffs. This question he decided in the negative for two reasons. First, by reason of the character of the leases (zarpeshgi) under which the lessees possession was in part at least that of a creditor operating payment to himself, and consequently was no foundation for a claim of occupancy rights, and, secondly, for the reason that the possession of the defendant, even if he held the land as a raiyat, did not extend for more than ten years. On the last point he overruled the contention of the defendant that to the period of his personal occupation could be added that of the occupation of his predecessors, from whom he had not acquired the land by right of inheritance. On the last point he overruled the contention of the defendant that to the period of his personal occupation could be added that of the occupation of his predecessors, from whom he had not acquired the land by right of inheritance. His conclusion accordingly was that the defendant was not a raiyat, but a tenure-holder within the meaning which the Bengal Tenancy Act attaches to that expression, and accordingly that he was bound to relinquish the land as provided by the lease. The High Court reversed this judgment. As to the 156 bighas, they said " We are of opinion that the expression zerait Ballipura used in the leases refers to the land held by the cultivator factory, and does not imply that the lands are the nijjote of the proprietors in which no right of occupancy can now be acquired." They next considered the question whether the defendant had rebutted the presumption arising under the Bengal Tenancy Act, s. 5, clause 5, that he was a tenure-holder and not a raiyat on the land. This question they answered in the affirmative, but they did not express any opinion on the further question as towhether the defendant was an occupancy raiyat within the meaning of the Act. In any view of the matter they said he was a raiyat of at least ten years standing, and was holding over, and, that being so, he could not be ejected on the determination of his lease, no notice to quit having been given. As to the 25 bighas admitted to be the plaintiffs khudkasht, they held for similar reasons that the suit could not succeed. With regard to the issue whether or not the larger area was the proprietors private land the material passage of the judgment is as follows " There being no evidence to shew that the lands were in the khas possession of the plaintiffs or their ancestors our finding is that this indigo zerait does not come within the definition of proprietors private lands contained in s. 120 of the Bengal Tenancy Act." And they added " We are unable to accept the contention for the plaintiffs that the leases, in virtue of which the factory has been in possession, are merely zarpeshgi leases. Reliance is placed on the case of Bengal Indigo Co. v, Mohunt Roghubur Das (( 1890) L. R. 23 Ind. Ap. Reliance is placed on the case of Bengal Indigo Co. v, Mohunt Roghubur Das (( 1890) L. R. 23 Ind. Ap. 158 166; S. C. I. L. R. 24 Calc. 272.), where their Lordships held that the leases in question were not mere contracts for the cultivation of the land let; but that they were also intended to constitute, and did constitute, a real and valid security to the tenant for the principal sums which he had advanced, and interest thereon. The tenants possession under them was, in part at least, not that of cultivators only, but that of creditors operating payment of the debt due to them, by means of their security. The leases now under our consideration do not admit of a construction upon the principles laid down by the Privy Council. The earliest lease, which originated and colours the tenancy, is a zarpeshgi; it is a lease for the cultivation of indigo and other crops ; but there is no stipulation for the payment of interest. We would regard it as a lease providing for part of the rent to be paid in advance, the remainder of the rent being payable annually. During the long interval succeeding the termination of this lease, the factory continued to cultivate the lands demised. Then, the second lease, of 1859, is not a zarpeshgi; it recites that the land is zerait of the factory. The next is a zarpeshgi lease similar to the lease of 1837 and providing for the deduction of the sum advanced from the rents of two years, but providing also for the payment of rent during the other years of the lease. In 1879 another zarpeshgi was executed of like nature, but the last lease of 1891 was a simple ticca pottah. Looking to the character of all these leases, the Road Cess Returns, in which the plaintiffs described the lessee of the disputed land as cultivating raiyats, and the long-continued possession of the lands as private lands (zerait) of the factory, we cannot resist the conclusion that the defendant is a raiyat entitled to grow indigo, poppy, or any other crops on payment of an annual rent of Rs. 5 per bigha." Kenworthy Brown, for the appellants, contended that, on the evidence and on the true construction of the various leases appearing therein and granted since 1839, the lands in suit formed the zirat or khudkasht lands of the appellants. This was sufficient to bring them within s. 120 (2.) of the Bengal Tenancy Act. The respondent obtained and held possession of the lands under the leases of October 28, 1891, and February 10, 1892, and was not entitled to hold after their expiration and contrary to their terms. He defended his retention of the possession of the whole area in dispute on the ground that he had not received any notice to quit under s. 45 of the Bengal Tenancy Act, 1885. It was contended that that section did not apply under the circumstances of the case and that no notice to quit was necessary. Next, as regards the larger of the two areas in suit, he refused to deliver up possession on the ground that his status was that of an occupancy raiyat and that he had acquired occupancy rights. It was contended that he was not a raiyat, but a tenure-holder within the meaning of s. 116 of the Bengal Tenancy Act, and that his tenure was at an end. There was under s. 5 (5.) a presumption that the respondent was a tenure-holder, and that presumption had not been displaced. Reference was made to s. 5, particularly sub-ss. 4 and 5, and ss. 116 and 120, and to Bengal Indigo Co. v. Mohunt Roghubur Das. (L. R. 23 Ind. Ap. 158, 166; S. C. I. L. R. 24 Calc. 272.) The Cess Act, Bengal Act IX. of 1880, as amended by Act II. of 1881, was also referred to, and s. 4 with its definition of " cultivating raiyat" and " tenure," s. 41 (2.), and ss. 42 and 43. De Gruyther, K.C., and A. M. Dunne for the respondents, contended that the High Court was right in finding that the appellants and their ancestors were never in khas possession of the lands in suit. There was no evidence that the land was ever cultivated by the landlords. It was an admitted fact that the proprietors of the factory have been in successive possession thereof for purposes of indigo cultivation since 1837. There was no evidence that the land was ever cultivated by the landlords. It was an admitted fact that the proprietors of the factory have been in successive possession thereof for purposes of indigo cultivation since 1837. Accordingly the lands in suit do not come within the definition of a proprietors private land under s. 120 of the Bengal Tenancy Act. Then as to whether Dalgliesh was a raiyat or not reference was made to Durga Prosunno Ghose v. Kalidas Dat (( 1881) 9 Calc. L. R. 449.); Laidley v. Gour Gobind Sarkar (( 1885) I. L. R. 11 Calc..501, 506.); Wilsons Glossary, p. 266, second column at the end, p. 267, and p. 567, vo ziraat. They examined the leases in evidence to shew that the appellants had themselves described the factory as, cultivating raiyat and contended that the long-continued possession of the lands as zirat of the factory raised an irresistible inference that the defendant was a raiyat entitled to cultivate. The defendant was not a tenure-holder within the meaning of the Act. He had amply rebutted by evidence any presumption as to his being a tenure-holder arising under s. 5 (5.) of the Bengal Tenancy Act. The case cited on the other side from L. R. 23 Ind. Ap. did not apply. Reference was made to s. 14 of Bengal Act IX. of 1880 and to ss. 25, 44, 45, 118, and 120 of the Bengal Tenancy Act. [Mr. Ameer Ali referred to Ram Khelawan Roy v. Sambhoo Roy. (1)] Kenworthy Brown replied, citing Gokul Mandar v. Pudmanund Singh. (( 1902) L. R. 29 Ind. Ap. 196.) The case cited from 9 Calc. L. R. might have been the law under the former Rent Acts, but was not so under the Bengal Tenancy Act. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. This is an appeal from a decision of the High Court; of Bengal, which reversed that of the Subordinate Judge of Tirhut. The suit was brought to recover possession of two areas of land, one containing 156 bighas and a fraction, and the other 25 bighas and a fraction. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. This is an appeal from a decision of the High Court; of Bengal, which reversed that of the Subordinate Judge of Tirhut. The suit was brought to recover possession of two areas of land, one containing 156 bighas and a fraction, and the other 25 bighas and a fraction. The ground of the suit as to each plot was that the plaintiffs were the proprietors of the land and the substantial defendant Dalgliesh had been their tenant, that the tenancy had expired, and that the plaintiffs were in law entitled to recover the land. The now respondents represent Dalgliesh. There is no doubt of the fact that the plaintiffs were proprietors as they alleged, and no doubt that Dalgliesh was their tenant, and no doubt that the leases under which Dalgliesh held had, according to their terms, come to an end. The defence as to the larger plot of land was that Dalgliesh had acquired occupancy rights in the land. There was a further defence, based upon s. 45 of the Bengal Tenancy Act, to the effect that, even if occupancy rights had not been gained, the claim must fail for want of the notice to quit prescribed by that section. As to the smaller area the defence was based upon the latter of the two grounds alone. The first Court held with respect to both properties that they were the proprietors private lands within the meaning of s. 116 of the Tenancy Act, and that therefore under that section no occupancy right could be acquired, and that s. 45, requiring notice to quit, had no application to the case. The High Court on appeal took a different view as to each of the areas, holding that neither of them was private land under s. 116, and dismissed the suit accordingly. The case stands quite differently with regard to the two areas. The High Court on appeal took a different view as to each of the areas, holding that neither of them was private land under s. 116, and dismissed the suit accordingly. The case stands quite differently with regard to the two areas. As to the larger of these, their Lordships deem it sufficient to say that, in their opinion, the learned judges of the High Court have correctly apprehended the law applicable to the matter, and their Lordships see no ground for doubting the soundness of the conclusion of fact arrived at by the learned judges, to the effect that the larger area was not the proprietors private land, with the consequence that there was nothing in s. 116 to preclude the acquisition by Dalgliesh of occupancy rights, and that such rights had accordingly been acquired. With regard, therefore, to this larger plot, their Lordships are of opinion that the present appeal cannot succeed. With reference to the smaller area, the case stands on a wholly different footing. It appears from the judgment of the Subordinate Judge that at the trial before him it was admitted that those lands were the private lands of the proprietor, and that the case proceeded and was dealt with on the footing of that admission. Their Lordships are of opinion that as to this part of the case the learned judges of the High Court were in error in going behind that admission and reopening the question whether that smaller area was the private land of the proprietor. In the course of the argument stress was laid upon the case of Bengal Indigo Co. v. Mohunt Roghubur Das (L. R. 23 Ind. Ap. 158.), the ruling relied upon being that on p. 166. Their Lordships think that case has no bearing on the present. In that case what was ruled was that the presumption laid down in s. 5, sub-s. 5, of the Bengal Tenancy Act applied, there being no finding of fact to exclude that presumption under the terms of the clause. In the present case there is such a finding, and their Lordships see no reason to question it. In that case what was ruled was that the presumption laid down in s. 5, sub-s. 5, of the Bengal Tenancy Act applied, there being no finding of fact to exclude that presumption under the terms of the clause. In the present case there is such a finding, and their Lordships see no reason to question it. The result, in their Lordships opinion, is that this appeal should be disallowed so far as relates to the larger of the two areas, but that so far as it affects the smaller area the judgment and decree of the High Court should be set aside and those of the Subordinate Judge restored, and their Lordships will humbly advise His Majesty accordingly. With regard to costs, inasmuch as each party has succeeded in part and failed in part, there will be no order either here or below.