Judgement Appeal (No. 113 of 1929) from a judgment of the High Court (February 22, 1928) reversing, so far as material to the present appeal, a decree of the Subordinate Judge of Patna (April 21, 1925), which affirmed a decree of the Munsifs Court. The respondents, members of a joint Hindu family, instituted a suit against the appellant in the Court of the Munsif of Patna for possession of about 37 bighas of land in mauza Lachampur Karja. The land in suit was part of a jaghir held by the respondents as road chaukidars. By their plaint they alleged that the appellant was a mere darjotdar (under-raiyat) in respect of the land, and that they had served on him a notice to quit under s. 49 (6) of the Bengal Tenancy Act, 1885. The appellant by his written statement pleaded, so far as material to the present appeal, that he was the plaintiffs raiyat with occupancy rights; and could not be ejected. A considerable body of documentary and parol evidence was admitted at the trial. The documentary evidence included certified copies of extracts from the record-of-rights, namely, khatian No. 463 issued to the plaintiffs, and khatian No. 2 issued to the defendants. There was no evidence as to the terms of the plaintiffs jaghir, nor as to when it was granted. The Munsif dismissed the suit. He found that the plaintiffs were tenure-holders, and the defendant a raiyat, and that the defendant with his predecessors had been in continuous possession since before 1898. He held that the defendant had therefore acquired occupancy rights under the Bengal Tenancy Act, 1885 ; he was of opinion that s. 181 did not preclude occupancy rights being acquired against the holders of a service-tenure. The Subordinate Judge dismissed an appeal, expressing his agreement with the Munsif on each of the above points. An appeal to the High Court was allowed and a decree for possession made except as to three bighas of land for which the defendant had obtained in 1902 a permanent lease from one of the plaintiffs. Macpherson J., with whose judgment Kulwant Sahay J. agreed, was of opinion that according to the record-of-rights the plaintiffs were not tenure-holders but raiyats; the absence of a khewat as to them showed that conclusively. The lower appellate Court had misdirected itself and its findings were vitiated thereby. Macpherson J., with whose judgment Kulwant Sahay J. agreed, was of opinion that according to the record-of-rights the plaintiffs were not tenure-holders but raiyats; the absence of a khewat as to them showed that conclusively. The lower appellate Court had misdirected itself and its findings were vitiated thereby. The plaintiffs being raiyats the defendant could be only an under-raiyat ; his claim to occupancy rights under the Act therefore failed. Further, s. 181 of the Act precluded occupancy rights being acquired in land held under service-tenure of a police character. The judgment is reported at I. L. R. 7 Pat. 566. The present appeal first came on for hearing in November, 1932, but was adjourned in consequence of an objection to its competence, that objection being dismissed on May 5, when the further hearing was adjourned see L. R. ,60 I. A. 366. 1933. July 21, 22, 24. Hyam for the appellant. The lower appellate Court found on the evidence that the respondents were tenure-holders and the appellant a raiyat. Those were findings of fact with which the High Court had no jurisdiction to interfere under the Code of Civil Procedure, ; ss. 100, 101 Midnapore Zamindary Co. v. Secretary of State for India (( 1929) L. R. 56 I. A. 388.), Wali Mohammad v. Mohammad Bakhsh. (( 1929) L. R. 57 I. A. 86.) Whether or not the findings, which were those of both lower Courts, were binding, they were right. There was no misdirection as to the entries in the record-of-rights. The appellants khatian describes the respondents as tenure-holders. The word " shikmi " used as to the appellants status is insufficient to show that he was merely an under-raiyat. The respondents khatian shows that they were not raiyats, because no entry appears in the column provided for stating whether a raiyat has or has not occupancy rights. The High Court was mistaken in supposing that if the respondents were tenure-holders there must have been a khewat. A tenure-holder is not necessarily recorded in a khewat Bengal Survey Manual, 1908, ch. XI., arts. 231, 246, 306. The term " khatian " is used for a tenancy of any degree, a khewat being merely the khatian of a proprietor or tenure-holder S. C. Sens Bengal Tenancy Act, 7th ed., pp. 631, 640. A tenure-holder is not necessarily recorded in a khewat Bengal Survey Manual, 1908, ch. XI., arts. 231, 246, 306. The term " khatian " is used for a tenancy of any degree, a khewat being merely the khatian of a proprietor or tenure-holder S. C. Sens Bengal Tenancy Act, 7th ed., pp. 631, 640. Whether the respondents were tenure-holders or raiyats as defined in s. 5 of the Bengal Tenancy Act, 1885, depends upon the terms of their jaghir grant. The grant not being in evidence its purpose is to be ascertained from the attendant circumstances Debendra Nath Das v. Bibttdhendra Bhramarbar Roy (( 1918) L. R. 45 I. A. 67, 72.), Rajani Kanta Ghose v. Secretary of State for India. (( 1918) L, R. 45 I. A. 190.) The evidence shows that the respondents and their predecessors did not reside on the land in suit, but let it to cultivators ; it was admitted that the appellants holding was heritable ; in the thakbast kasra of 1842 the respondents predecessor is described as " proprietor." As a raiyat who had been in continuous possession for over twelve years the appellant had a right of occupancy under ss. 20 and 21 of the Act of 1885, and by s. 25 could not be ejected. Sect. 181 does not prevent a raiyat from acquiring against a service-tenure-holder, who is his landlord, the right of occupancy expressly conferred upon him in the case of other tenure-holders. A series of cases in Calcutta, following Mohesh Majhi v. Pran Krishna Mandal (( 1905) 1 Cal. L. J. 138.), have taken a contrary view, but it is submitted that they were wrongly decided. Sect. 116 provides that occupancy lights cannot be acquired in certain classes of lands, but does not mention service-tenure lands. The true effect of s. 181 is to prevent the holder of a service-tenure acquiring against his grantor rights conflicting with the grant to him. But for the section the respondents, as tenure-holders, would have under ch. III. rights, including permanency of holding, described by s. 10 as " incidents of tenures." [Reference was made to the cases cited in the judgment of the High Court.] Nissim for the respondents. But for the section the respondents, as tenure-holders, would have under ch. III. rights, including permanency of holding, described by s. 10 as " incidents of tenures." [Reference was made to the cases cited in the judgment of the High Court.] Nissim for the respondents. The findings of the Subordinate Judge that the respondents were tenure-holders and the appellant a raiyat involved questions of law and therefore were not binding in second appeal Dhanna Mal v. Moti Sagar. (( 1927) L. R. 54 I. A. 178.) Under the rule laid down in Wall Mohammad v. Mohammad Bakhsh (( 1929) L. R. 57 I. A. 86.) (in which the above case is distinguished) the findings were not binding, because the record-of-rights was the foundation of the right claimed. The High Court having differed from the lower Courts as to the status of the parties the onus is upon the appellant to establish that he has a right of occupancy Jagdeo Narain Singh v. Baldeo Singh. (( 1922) L. R. 49 I. A. 399, 402.) The Subordinate Judge misconstrued the record-of-rights, and did not observe the tests arising from the definitions in s. 5 of the Act ; having misinterpreted the entries the presumption under s. 103b was not given effect. The respondents khatian does not describe them as tenure-holders, but enters them as " tenants " together with the appellant who is described as " shikmi "in both khatians ; that meant that he was an under-raiyat Bengal Survey and Settlement Manual, Patna and Bhagalpur, 1907. If the respondents had been tenure-holders they would not have been recorded in a khatian but in a khewat James Survey and Settlement Report, Patna, 1907-12. It should be assumed that the judges of the High Court correctly stated the practice in Bihar when the record-of-rights was prepared ; the present practice in Bengal may differ. Both khatians stated that the lands were " chauki" ; and it is not disputed that the respondents held as road chaukidars. [As to the incidents of land so held reference was made to Ranjit Singh v. Kali Dasi Debi. (( 1917) L. R. 44 I. A. 117.)] The " attendant circumstances," which accordingto the cases cited for the appellant must be considered in determining the purpose of the grant, are the circumstances in which the grant was made. [As to the incidents of land so held reference was made to Ranjit Singh v. Kali Dasi Debi. (( 1917) L. R. 44 I. A. 117.)] The " attendant circumstances," which accordingto the cases cited for the appellant must be considered in determining the purpose of the grant, are the circumstances in which the grant was made. It is therefore not material that at a later date the grantees descendants were not residents. The word “proprietors" in the thakbast khasra of 1842 showed merely that the respondents predecessors were in sole occupation ; it was appropriate for road chaukidars holding as raiyats direct from Government. [As to the thakbast khasra see Jagdeo Narain Singh v. Baldeo Singh (L. R. 47 I. A. 399, 406.), also Bengal Statistics, 1847.] The grant being of a small area of land to road chaukidars the presumption is that it was for cultivation by the chaukidars. Even if the respondents were tenure-holders and the appellant a raiyat, the appellant is precluded from acquiring occupancy rights by s. 181 of the Act, the respondents holding being a service-tenure within that section and liable to resumption. The High Court at Calcutta has consistently taken that view as to the effect of the section Mohesh Majhi v. Pran Krishna Mandal (( 1905) I. Cal. L. J. 138.), Upendra Nath Hazra v. Ram Nath Chowdhry (( 1906) I. L. R. 33 C. 630.), Jafaruddin Saha v. Kumar Jamini (( 1918) 23 Cal. W. N. 136.), Khetra Mohun Ghosh v. Lakhi Kanta Pal. (( 1926) 44 Cal. L. J. 271.) No question arises in the appeal as to the acquisition of occupancy rights before the Act of 1885. Hyam replied. Dec. 7. The judgment of their Lordships was delivered by SIR JOHN WALLIS. This is an appeal by the defendant from a judgment in second appeal of the High Court at Patna reversing the judgment and decree of the lower appellate Court and giving to the plaintiffs a decree for ejectment. The plaintiffs case was that they were raiyats within the definition in the Bengal Tenancy Act, 1885, that is to say, that the suit lands had been acquired by the original grantee for the purpose of cultivating them himself and that therefore their tenant the defendant was an under-raiyat and so liable to ejectment on the statutory notice under s. 49 of the Act. The defendants case was that the suit lands had been acquired by the original grantee for the purpose of collecting rents, and that therefore the plaintiffs were tenure-holders and he himself was a raiyat holding under them and was not liable to ejectment as he had acquired occupancy rights under the Act. In that case the further question arises whether the defendant is precluded by s. 181 of the Act from acquiring occupancy rights in the lands by reason of the fact that they are held on service-tenure, as has been ruled in some Calcutta decisions which have been followed by the High Court in this case. This is a question of general importance, as the effect of these decisions is largely to exclude this class of raiyats from the benefits of the Act, and now comes before the Board for the first time. The plaintiffs are jagirdars holding the suit lands and other lands in neighbouring villages as a revenue-free jagir for watching certain roads. The grant probably dates back to the days before the cession to the company. It is stated in the Introduction to Mr. Fields Regulations, p. 53, that a large number of jagirs were created in Behar in the time of Shah Alam and his immediate predecessor during the anarchy and decline of the Mogul Empire. This may account for the great number of small jagirs of this kind in the immediate neighbourhood as mentioned in the judgment of the High Court. According to the same authority such grants when made by the Emperor were assignments not of the lands but of the revenue. As the lands being revenue-free were not included in the permanent settlement with the local zamindar they have been recorded as the property of the Crown. The first question therefore already stated is whether the original grantee of the lands on service-tenure was a tenure-holder or a raiyat within the meaning of the Act ? The record of rights was against the plaintiffs as they were recorded as tenure-holders, and s. 103b of the Act provides that every entry therein is presumed to be correct until the contrary is proved. Ordinarily therefore all the Courts have to do with the record is to apply this presumption as directed by the section. The record of rights was against the plaintiffs as they were recorded as tenure-holders, and s. 103b of the Act provides that every entry therein is presumed to be correct until the contrary is proved. Ordinarily therefore all the Courts have to do with the record is to apply this presumption as directed by the section. Unfortunately in this case the certified copies of extracts from the record obtained in 1922 for use at the trial were not wholly in English as they should have been in what purports to be the English version of the record which was completed in 1910. The printed forms are in English, but some of the entries contain vernacular terms taken apparently from the vernacular version of the record which is necessarily the version in common use. Whatever be the explanation, the use of these vernacular terms has enabled the plaintiffs to set up successfully in the two first Courts that the record was self contradictory and that it was impossible to raise the presumption that the plaintiffs were tenure-holders, while the High Court has gone further and held that the presumption arising on the record was that the plaintiffs were raiyats. Prima facie nothing can well be less likely than that the record-of-rights, if properly understood, should be self-contradictory prepared as it is in accordance with rules framed by the Local Government under the Act by a revenue officer familiar with its provisions and on printed forms supplied for the purpose. Under the rules the part of the record known as the khatian is to show how all the lands in the village are held ; and every tenant, from the tenure-holder down to the under-raiyats, if there are any, has to be given an extract relating to his tenancy. The khatian is framed in such a way as to enable this to be done, and the material extracts in the case are the extracts relating to the tenancies of the plaintiffs and of the defendant respectively. The plaintiffs in the extract relating to their tenancy are not shown as raiyats, nor is there any entry under column 10 recording whether or not they had occupancy rights, as there must have been if it had been intended to record them as raiyats. They are recorded as tenants of the proprietor, the Crown, holding revenue-free lands on service-tenure, as a jagir for watching roads. They are recorded as tenants of the proprietor, the Crown, holding revenue-free lands on service-tenure, as a jagir for watching roads. That the plaintiffs were here regarded as tenure-holders appears from the fact that in the extract relating to the defendants tenancy which is set out below, they are entered as tenure-holders " as in khata No. 463," where the word " khata " is an obvious misprint for khatian, 463 being the serial number of the plaintiffs khatian. The defendant is entered in the plaintiffs khatian as the tenant holding under them with the word Shikmi appended to his name, but the exact nature of his tenancy is to be ascertained from his own khatian, in which he is shown as the tenant of i tenure-holders. The material parts of the defendant Anup Mahtos khatian on which the case turns are as follows — A.—Khatian of Mauza Kukja. Name of proprietor and number in khewat—Crown (?), entered in khewat No. 1. Name of tenure-holder, if any, and number in khewat—Ramlal Dusadh and others, as in khata (sic) No. 463. 1 2 10 Seria Name, percentage, Column (1) Status, if occupancy l caste and resident, s 3 to 9 length of possession. num etc. of tenants. re la ting ber t o (2) Rent, how fixed, and of boundari particulars, if progressive. Khat e s , ian. ar ea s , rent etc. omitted. (3) Special conditions and incidence, if any. 2 Anup Mahto, son of Dhanukdhari Mahto, by caste Kurmi, resident of Beri. Shikmi twelve years rental Rs. 118-3. Under the definitions in s. 5 of the Act a raiyat is a cultivating tenant either of a proprietor or a tenure-holder, and an under-raiyat a tenant of a raiyat, and therefore the fact that the defendant is a raiyat and not an under-raiyat sufficiently appears from his being recorded in column 2 as a tenant holding not under raiyats but under tenure-holders. Under the rules every tenant has to be asked if he claims occupancy rights, and the object of the entry as to occupancy rights in column 10 is to show whether or not he is to be presumed to have them. Under the rules every tenant has to be asked if he claims occupancy rights, and the object of the entry as to occupancy rights in column 10 is to show whether or not he is to be presumed to have them. The defendant being incapable according to the decisions already mentioned of acquiring occupancy rights, the entry if made in English must have been " non-occupancy twelve years," whereas the actual entry is " shikmi twelve years." This is where the alleged contradiction arises, as it is said " shikmi " necessarily means under-raiyat, a meaning which would appear to be excluded by the context, If, on the other hand, it is used here as the vernacular equivalent for non-occupancy, it should have been used in the same sense in column 10 of the vernacular version of the khatians of all under-raiyats except the very few who have occupancy rights by custom, which may possibly account for its being supposed to mean under-raiyat. The word " shikmi" as used in the word " shikmi-taluq ", which has been considered by this Board in Charu Chandra Ghose v. Kamakhya Narain Singh (( 1930) L. R. 58 I. A. 17.), denotes some degree of dependence on the zamindar, and some vernacular equivalent having to be found for non-occupancy, it would not be inapt to describe tenants who are so much less independent of their landlords than tenants who possess occupancy rights. No such case was, however, put forward before the Munsif or before the Subordinate Judge on appeal. The consistency of the record seems to have had no defenders. It was apparently accepted that skihmi must mean under-raiyat, and was so assumed in the judgments without considering whether this meaning was not excluded by the context. As, however, both Courts found on the evidence without the aid of any presumption that the plaintiffs were tenure-holders the defendant was not prejudiced ; and on this finding both Courts held that the defendant had occupancy rights and dismissed the plaintiffs suit. The High Court, however, reversed this finding and gave to plaintiffs a decree for ejectment on the ground that the lower appellate Court had misdirected itself, because the Subordinate Judge had not raised a presumption that the plaintiffs were raiyats. The High Court, however, reversed this finding and gave to plaintiffs a decree for ejectment on the ground that the lower appellate Court had misdirected itself, because the Subordinate Judge had not raised a presumption that the plaintiffs were raiyats. As to this ruling which appears to proceed on a misunderstanding as to the nature of the khatian, it is sufficient to say that, even if it had been open to the lower appellate Court to raise such a presumption, the fact that the Subordinate Judge did not raise it would not, in their Lordships opinion, amount to a misdirection. The question would necessarily depend on inferences to be drawn from statements in the khatian, and it is well settled that such inferences are inferences of fact with which a High Court cannot interfere in second appeal. The finding of the lower Courts that the plaintiffs are tenure-holders must therefore stand. Their Lordships will now proceed to consider the serious question whether, as held in the Calcutta decisions, the defendant is disabled from acquiring occupancy rights, and even non-occupancy rights, under the Act by reason of the fact that his landlords are tenure-holders whose tenure is a service-tenure and so liable to resumption. Whether the proprietary rights in the suit lands are vested in the Crown, as recorded in the record-of-rights, or are revenue-free lands owned by the plaintiffs, in either case they constitute an estate as defined in the opening definition in s. 3, sub-s. 1, and therefore the respective rights of the defendant and his landlords, whether proprietors or tenure-holders, are governed by the Act. Much the most important—as they were the most controverted—provisions of the Act are those relating to occupancy rights, and very clear words would, in their Lordships opinion, be necessary to show an intention on the part of the legislature to exclude any particular class of raiyats from the enjoyment of such rights and the protection they afford. Under the Act occupancy rights are conferred by s. 21, upon the settled raiyat, who is defined in s. 20 as a person who for a period of twelve years has continuously held land in the village as a raiyat. Under the Act occupancy rights are conferred by s. 21, upon the settled raiyat, who is defined in s. 20 as a person who for a period of twelve years has continuously held land in the village as a raiyat. During the intervening period he is a non-occupancy raiyat, but is not left altogether without statutory protection against arbitrary eviction, as s. 44 provides that he can only be ejected on one of the four grounds specified in the section. The importance attached by the legislature to the rights conferred upon raiyats by this part of the Act further appears from the fact that they are prohibited by s. 178 from contracting themselves out of them. It is therefore scarcely likely that the legislature should by a subsequent section have deprived a large class of raiyats of these very rights, and thereby created a new class of raiyats without any statutory protection against their landlords, but nevertheless subject to the other provisions of the Act which were intended to facilitate the collection of the landlords rents. The section which is said to have this effect is s. 181, which is as follows Nothing in this Act shall affect any incident of a ghatwali or other service-tenure, or, in particular, shall confer a right to transfer or bequeath a service-tenure which, before the passing of this Act, was not capable of being transferred or bequeathed. In their Lordships opinion this is merely a saving clause which does not affect the rights of occupancy expressly conferred by the Act upon raiyats against this class of tenure-holders, but leaves the incidents of service-tenure unaffected. With regard to the Calcutta decisions which have been cited for the respondents, it will be sufficient to refer to the two earliest decisions which have since been followed in that Court and were followed by the Patna High Court in this case. In Mohesh Majhi v. Pran Krishna Mandal (1 Cal. L. J. 138.), which was decided in 1904, Mitra J., sitting alone, held that neither occupancy nor non-occupancy rights under the Act could be acquired by raiyats against ghatwals holding their lands on service-tenure having regard to the provisions of s. 181 of the Act. In Mohesh Majhi v. Pran Krishna Mandal (1 Cal. L. J. 138.), which was decided in 1904, Mitra J., sitting alone, held that neither occupancy nor non-occupancy rights under the Act could be acquired by raiyats against ghatwals holding their lands on service-tenure having regard to the provisions of s. 181 of the Act. This case was followed three years later in Upendra Nath Hazra v. Ram Nath Chowdhry (I. L. R. 33 C. 630.), in which Maclean C.J., delivering the judgment of the Court, referred with approval to the case just mentioned, and observed " I think upon principle, having regard to the nature of ghatwali lands, the acquisition of occupancy rights in these lands is inconsistent with the incidents of such tenures, and this view gains support from s. 181 of the Bengal Tenancy Act which seems to me to be inconsistent with the view of the acquisition of such rights in ghatwali lands." Their Lordships with great respect are unable to agree with this construction of the Act. It is a tenancy Act, and what it does is to enable this class of raiyats to acquire occupancy rights against their landlord, the tenure-holder, so long as the tenancy subsists—that is to say, until the landlords tenure is determined by resumption, leaving the rights arising on resumption to be determined in accordance with the pre-existing law, and in Secretary of State for India v. Girjabai (( 1927) L. R. 54 1. A. 359.) this Board recently refrained from expressing any opinion on the question whether rights of occupancy created by a jagirdar would be binding on the Crown after the resumption of the jagir. The effect of the other view might be to deprive raiyats of this class in some cases for generations of the statutory protection given by the Act because of a possible right to dispossess them on a resumption of the tenure, which might not exist or might never be exercised. Further, it has been held by the Calcutta High Court in Ram Kumar Bhattacharjee v. Ram Newaj Rajguru (( 1904) I. L. R. 31 C. 1021.) and other cases that, as the Bengal Rent Act X. of 1859 and Act VIII. Further, it has been held by the Calcutta High Court in Ram Kumar Bhattacharjee v. Ram Newaj Rajguru (( 1904) I. L. R. 31 C. 1021.) and other cases that, as the Bengal Rent Act X. of 1859 and Act VIII. of 1869, which replaced it and was repealed by the present Act, did not contain any provision corresponding to s. 181 of the present Act, there was nothing to prevent the acquisition of occupancy rights by raiyats against tenure-holders holding a service-tenure while those Acts were in force, and that occupancy rights so acquired were not affected by the present Act. This is an additional reason for not so construing s. 181 as to attribute to the legislature an intention to deprive this class of raiyats by s. 181 of rights which they had enjoyed under the previous Acts, and which were again expressly conferred upon them in the present Act as being in accordance with the ancient law and custom of the country. In their Lordships opinion there is a great distinction between the grant of lands on service-tenure revenue or rent free to a raiyat to cultivate himself in lieu of wages and a grant to a tenure-holder whose emoluments are to be derived from the collection of rents from tenants holding under him as raiyats. In the former case the raiyats grant may well be said to be inconsistent with the acquisition of fall occupancy rights because the lands are only granted to him so long as he holds the office. On the other hand, the grant to the tenure-holder is in the nature of an assignment of the landlords rights for the duration of the tenure and would not necessarily involve any interference with the raiyats customary rights. j For these reasons, their Lordships are of opinion that the defendant has established his rights of occupancy against the plaintiffs and that the appeal should be allowed, the decree of the High Court reversed and the decree of the lower appellate Court restored, and they will humbly advise His Majesty accordingly. The respondents will pay the appellants costs both here and in the High Court.