Judgement Appeal from a judgment and decree of the High Court (July 11, 1913) reversing a decree of Richardson J. The suit was instituted in the Court of the Settlement Officer of Dompara by the respondent (a minor suing by a manager appointed by the Court of Wards) against the appellant. It was claimed that an entry in the record of rights prepared by the Assistant Settlement Officer under the Bengal Tenancy Act, 1885, was erroneous, in that it recorded the status of the tenant under a lease granted by the respondent in 1901, and assigned to the appellant in 1907, as that of a raiyat and not that of a tenure-holder. The facts of the case, together with the material terms of the lease and the relevant provisions of the above Act, appear from the judgment of their Lordships. Law Rep. 45 Ind. App. 67 ( 1917- 1918) Debendra Nath Das V. Bibudhendra Bhramarbar Roy 2 The High Court, upon appeal under the Letters Patent, held, reversing Richardson J., that the tenant was a tenure-holder. The learned judges (Jenkins C.J. and Mookerjee J.) said that, the area being over 100 standard bighas, it was to be presumed under s. 5, sub-s. 5, that the tenant was a tenure-holder unless the contrary were shown. The terms of the lease negatived the contention that the intention was that the land should be reclaimed and subsequently be cultivated by the tenant himself. The word " primarily " in the definition of a raiyat in s. 5, sub-s. 1, indicated that the definition was not an exclusive definition; it was possible for a person to be a tenure-holder although a part of the land was intended to be, and was, cultivated by himself. Here the land was cultivated by undertenants. They were, therefore, of opinion that the presumption had not been rebutted. They further said " On the other hand, there are indications in the lease itself that the grant could never have been intended to be a raiyati grant. In the first place, the grant was for the purpose of reclamation, and the grantee was expected to reclaim the land at his own expense. His position consequently would hardly be intended to be as precarious as that of a non-occupancy raiyat. In the first place, the grant was for the purpose of reclamation, and the grantee was expected to reclaim the land at his own expense. His position consequently would hardly be intended to be as precarious as that of a non-occupancy raiyat. In the second place, there was a period of remission fixed, during which no rent was to be paid on account of the land itself ; this is a term which usually finds place in leases of tenures. In the third place, the rate of rent itself was fixed in perpetuity and a premium was paid by the grantee to the grantor. Taken as a whole, the lease, in our opinion, makes it reasonably plain that the grant was intended to be that of a tenure..... The view we take is supported by the observation of Lord Davey in the case of Gokul Mandar v. Pudmanund Singh.91 (1) 1917. Dec. 7. De Gruyther, K.C., and Sir William Garth, for the appellant. The appellant is a raiyat and not a tenure-holder. The test is the primary purpose for which the right of tenancy was originally acquired Bengal Tenancy Act, 1885, s. 5, sub-ss. 1, 4 ; Durga Prosunno Ghose v. Kali Das Dutt (( 1881) 9 Cal. L. R. 449.); Laidley v. Gour Gobind Sarkar. (( 1885) I. L. R. 11 C. 501.) Here the primary purpose was cultivation by hired labour, although the lease allowed the tenant to cultivate by raiyats or otherwise. It is unlikely that the tenant intended to become a tenure-holder, because in that case any person he put in would have been a raiyat with all the rights of raiyatwari occupation. The Board in Gokul Mandar v. Pudmanund Singh (( 1902) L. R. 29 I. A. 196.) merely gave effect to the presumption under s. 5, sub-s. 5, there being no indication that the purpose was to acquire raiyat tenure. The respondent should have objected to the record of rights prepared under ss. 101, 102, and 105, by which the tenants status was recorded as that of a raiyat. Not having done so this suit was not competent. [Lord Buckmaster. The last contention was not raised in the Courts below, nor is it raised by the appellants case ; it is therefore not open.] Sir Erle Richards, K.C., and 0Gorman, for the respondent, were not called upon. 1918. Feb. 7. Not having done so this suit was not competent. [Lord Buckmaster. The last contention was not raised in the Courts below, nor is it raised by the appellants case ; it is therefore not open.] Sir Erle Richards, K.C., and 0Gorman, for the respondent, were not called upon. 1918. Feb. 7. The judgment of their Lordships was delivered by MR. AMEER ALI. The sole question involved in this appeal is whether the defendant-appellant is a tenure-holder or is a raiyat as defined in the Bengal Tenancy Act (VIII. of 1885). The defendant holds over 250 acres of land in the village of Goyalbank, forming part of the plaintiffs zamindari in the district of Cuttack, under a lease granted by the predecessor of the plaintiff in 1901 to one Gokulananda Chowdhury. In 1907 Gokulananda assigned the lease to the defendant. The land covered by the lease became about the same time the subject of " record of rights " proceedings instituted by Government under ch. 10 of the Act. Those proceedings are taken by the Revenue authorities before special officers for the ascertainment and record of all rights connected Law Rep. 45 Ind. App. 67 ( 1917- 1918) Debendra Nath Das V. Bibudhendra Bhramarbar Roy 3 with the land within the ambit of the inquiry. At the initial stage of the proceedings the defendant was entered as a " tenure-holder," but subsequently on his objection the Assistant Settlement Officer recorded him as " a settled raiyat at a fixed rent." The present suit has been brought under the provisions of s. 106 on behalf of the zamindar for rectification of the entry by recording the defendant as a " tenure-holder." The suit was first heard by the Settlement Officer, who upheld the plaintiffs contention as to the status of the defendant, and his decision was confirmed on appeal by the Special Judge of Cuttack. The defendant then preferred a second appeal to the High Court of Calcutta, which came for hearing before Richardson J. The defendant renewed before that learned judge his contention that under the terms of his Jease he was entitled to be classed as a raiyat. Richardson J. accepted his contention and reversed the order of the Special Judge, the effect of which was that the entry in the record of rights remained as made by the Assistant Settlement Officer. Richardson J. accepted his contention and reversed the order of the Special Judge, the effect of which was that the entry in the record of rights remained as made by the Assistant Settlement Officer. An appeal was thereupon preferred by the respondent under s. 15 of the-Letters Patent, which came on for hearing before two judges of the High Court, Jenkins C.J. and Mookerjee J., who, differing from Richardson J., held, in concurrence with the Settlement Officer and the Special Judge, that the defendant was a tenure-holder. They accordingly reversed the order of that learned judge, and restored the decree of the lower Courts for the rectification of the entry in the record of rights. The present appeal to His Majesty in Council, which forms the sixth stage of this litigation, is an indication not merely of the persistency of the defendant, but also of the valuable rights that are attached to his claim, for, if he be a tenure-holder, persons holding under him would have the status of raiyats and would be entitled to acquire, after a certain efflux of time, the right of occupancy under the Act. Whereas if he be a raiyat, those persons would only be under-raiyats without the privileges or security afforded by the Act to raiyats. For the purposes of the Tenancy Act, tenants are classed under three heads—namely, tenure-holders, raiyats, and under-raiyats, that is to say, tenants holding, whether immediately or immediately, under raiyats. Raiyats, again, are divided into three sub-classes— i.e., (a) raiyats holding at fixed rates, (b) occupancy raiyats, and (c) non-occupancy raiyats, The defendant has been entered as a settled raiyat at a fixed rent, evidently on the ground that under the lease the rent payable by him is permanently fixed. But it is to be observed that fixity of rent is no criterion for the determination of the point at issue, for a tenure may be held at a fixed rent equally with a raiyati holding. The question must, therefore, be decided on other considerations. Sect. But it is to be observed that fixity of rent is no criterion for the determination of the point at issue, for a tenure may be held at a fixed rent equally with a raiyati holding. The question must, therefore, be decided on other considerations. Sect. 5, sub-s. 1, defines a tenure-holder to mean " Primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it, and includes all the successors in interest of persons who have acquired such a right." And a raiyat is defined to mean " Primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family, or by hired servants, or with the aid of partners, and includes also the successors in interest of persons who have acquired such a right." Sub-s. 4 provides certain rules for determining whether a tenant is a tenure-holder or raiyat. Clause (h) is important it says, " The Court shall have regard to the purpose for which the right of tenancy was originally acquired." Sub-s. 5 is equally important. It provides that where the area held by a tenant exceeds 100 standard bighas (a little over 33 acres) " the tenant shall be presumed to be a tenure-holder until the contrary is proved." In determining the status, therefore, of a tenant, namely, whether he is a tenure-holder or a raiyat, two elements have to be borne in mind, first, the purpose for Law Rep. 45 Ind. App. 67 ( 1917- 1918) Debendra Nath Das V. Bibudhendra Bhramarbar Roy 4 which the land was acquirer!, and, secondly, the extent of the tenure or holding. A close examination of the definition clauses makes it quite obvious that both these elements are closely interrelated. The law assumes the raiyat to be the actual cultivator of the soil, either by his own labour or the labour of members of his family or by hired labourers, and it assumes also that ordinarily a larger area than 100 bighas would make cultivation by the personal agency of the tenant improbable. The presumption provided in sub-s. 5 of s. 5 is founded on that hypothesis. The presumption provided in sub-s. 5 of s. 5 is founded on that hypothesis. In the present case the land held by the defendant amounts to more than 250 acres ; the statutory presumption certainly applies to him. He seeks to rebut it by referring to the purpose for which the lease was granted. The terms of the document have been carefully examined by the Settlement Officer, the Special Judge, and the High Court. Their Lordships will therefore confine their remarks to its general features. It is an ordinary reclamation lease ; it leases the land permanently to the lessee at a fixed rent to cultivate the same, after making it fit for cultivation at his own expense and by his own efforts. In other words, he is to reclaim the land at bis own expense and bring it under cultivation. The sixth clause makes this quite clear. It says " You shall, by reserving water and raising bandhs (on the land leased,) make it fit for cultivation according to your will, and shall hold the same by cultivating it or having it cultivated, and you shall be competent to make such other arrangement or adopt such other convenient steps as you consider necessary for cultivating the same." The employment of the agency for the cultivation is left entirely to the option of the lessee ; the land was leased for cultivation, that is, for agricultural purposes, but the agency to be employed is to be determined by the lessee ; he has the power to establish raiyats or under-lease it to others, or cultivate it himself, if he can. It cannot be said that the purpose is, primarily or otherwise, that the demised land should be cultivated by his personal agency. At the best the lease may be said to be equivocal. In their Lordships opinion the High Court and the lower Courts were perfectly right to look to the attendant circumstances to judge of the purpose for which the lease was acquired and to determine the status of the defendant. At the best the lease may be said to be equivocal. In their Lordships opinion the High Court and the lower Courts were perfectly right to look to the attendant circumstances to judge of the purpose for which the lease was acquired and to determine the status of the defendant. Apart from the facts appearing in the lease to which the learned judges of the High Court have referred as indicating that the land was being taken for purposes other than that of personal and direct cultivation as a raiyat, there is the outstanding circumstance that the land was leased to a man of means who appears to be a resident of another place for the purpose of reclamation and rendering fit for cultivation, the agency to be employed for carrying on the cultivation being left to his discretion. Their Lordships think that the presumption under s. 103b, on which the defendant relies, that an entry in a record of rights finally published " shall be presumed to be correct until it is proved by evidence to be incorrect," is fully rebutted by the circumstances to which the Courts in India have referred in arriving at the conclusion that the defendant was a tenure-holder and not a raiyat. Their Lordships are of opinion that this appeal should be dismissed with costs, and that they will humbly advise His Majesty accordingly.