JUDGMENT Iqbal Ahmad, J.
1. The subject of dispute in the suit out of which this appeal arises was an area of 15.427 acres of land described as "Ahata Godam Nil" situated in village Bahadurpur in the district of Azamgarh. The plaintiff-respondents originally claimed a declaration that they were the owners of the land in dispute and were entitled to have their names recorded in the khewat. This relief was however not granted to the plaintiffs by the trial Court and, in the lower appellate Court, the plaintiffs confined their claim to a declaration that they were entitled to possession and to make collections and appropriate the produce of the plots in dispute. They also prayed for an injunction restraining defendants' second and third parties from causing interference in the plaintiffs' collection of rent and appropriation of the produce of the plots in dispute. In the alternative the plaintiffs had claimed possession of the area in dispute. The plaintiffs claimed to be entitled to the reliefs mentioned above on the basis of a sale deed dated 31st July 1928, executed under circumstances hereinafter mentioned. Defendants second and third parties were the zamindars of the village and defendants first party were the vendors of the plaintiffs. The suit was contested by defendants second party who maintained that the area in dispute was agricultural land and the position of the vendors of the plaintiffs was at best that of occupancy tenants. They therefore maintained that the vendors of the plaintiffs had no right to transfer the area in dispute to the plaintiffs, and that the plaintiffs had not acquired any title to the area in dispute by virtue of the purchase made by them. The trial Court dismissed the suit. But on appeal by the plaintiffs the lower appellate Court passed a decree declaring that the plaintiffs held the land in dispute under a permanent tenure subject to the payment of Rs. 88-2-0 to the zamindars and their right is transferable and heritable.
2. The history of the area in dispute is involved in some obscurity, but it is common ground that this land was originally let and was utilized for the purpose of building and running an indigo factory. This happened either towards the close of the eighteenth or the beginning of the nineteenth century. It appears from the Gazetteer of Azamgarh district (vide p. 56) that one Mr. Crommelin, Commercial Resident of the East India Company at Azamgarh, erected an indigo factory on the plots of land in dispute in-the year 1807, and that at the time of the mutiny the factory was owned by one Mr. Venables. There was a steady decline in the indigo industry since 1877 and all the indigo factories in Azamgarh, whether owned by Europeans or by Indians, had fallen on evil days. There are no copies, of the village records available concerning this area of land prior to the year 1874. A certified copy of an extract from the khasra of 1874 was, however, filed by the plaintiffs and one Mr. Goutier is recorded in that document in the tenants' column as an occupancy tenant of 30 years standing.
3. An extract from the khatauni of 1876 was also filed by the plaintiffs, but as that document was incomplete, we, with the consent of the appellants' counsel, permitted the counsel for the respondents to produce a certified copy of the khatauni with respect to all the plots in dispute. The respondents' counsel has accordingly filed today a copy of the jamabandi of 1876 with respect to all the plots in dispute. It appears from this document that the area in dispute was described in the village papers as "ahata godam Goutier Saheb." The area of the ahata is shown in the jamabandi to be 26 bighas 2 biswas 16 dhurs. Out of this area an area of about 5 bighas was under cultivation in 1876 and the rest was parti land. As against the area under cultivation the names of certain shikmi tenants were entered in the jamabandi and the rent payable with respect to the same was entered as Rs. 16-7-6. The parti plots were also specified in the jamabandi and the area of the same was entered as 20 bighas 17 biswas odd and the rent payable with respect to that area was shown as Rs. 63-14-3. The rent on account of the cultivated and the parti area was then totalled together and was shown as Rs. 80-5-9. There is a note in the remark column of the jamabandi that the "wasuli" is Rs. 88-2-0.
4. There has been some controversy in this Court over the question as to whether the rent entered in the jamabandi on account of the cultivated portion was payable by the shikrnis, whose names are entered in the jamabandi, or was payable direct by Mr. Goutier to the zamindars, but in the view that we take it is unnecessary to decide that question. It is enough to say that the jamabandi of 1876 shows that a sum of Rs. 88-2-0 was payble by Mr. Goutier to the zamindars on account of the rent of the plots in dispute. It appears that Mr. Goutier had mortgaged the ahata in question along with the buildings, indigo tanks etc., to Sheo Dayal and Har Dayal. The mortgagees put their mortgage into suit and having obtained a decree, put to sale the ahata along with the bungalow, indigo tanks etc., and purchased the same on 12th December 1882. The sale certificate, Ex. 1 shows that not only the buildings in the ahata but the ahata itself was put to sale and was purchased by the mortgagee decree-holders. Sheo Dayal and Har Dayal sold the ahata along with the buildings to one Mr. Fox in March 1883. The area of the ahata was shown in the sale deed as 33 bighas odd. In the year 1887 Mr. Pox sold the ahata to one Mr. F. Foutier. Mr. Foutier in his turn executed a simple mortgage with respect to the ahata in 1887 in favour of one Raja Ram. Raja Ram filed a suit for sale on the basis of the mortgage in 1889 and, having obtained a decree, put the ahata to sale and purchased the same himself. Raja Ram having died, his rights and interests in the ahata passed to his two sons, named Radha Raman and Badri Prasad. Radha Raman and Badri Prasad executed the sale deed dated 31st July 1928, in favour of the plaintiffs to which reference has already been made. Radha Raman was defendant 1 and Badri Prasad's son, Sugan Chand, was defendant 2 in the present litigation and they were impleaded as defendants first party.
5. Having obtained the sale deed just mentioned, the plaintiffs filed an application in the revenue Court praying that their names be recorded as proprietors in the khewat. The application was opposed by defendants second and third parties who, as stated before, are the zamindars of the village. The Assistant Collector considered that the owners of the factory had enjoyed an absolute and heritable right in the land and accordingly ordered that the names of the plaintiffs should be recorded as proprietors. The zamindars appealed to the Collector who held that the position of the plaintiffs and of their predecessors-in-title was not that of proprietors, and, as such their names could not be entered in the khewat. He observed that the matter was one which would ultimately have to be settled by the civil Courts. He however ordered that the names of the vendors of the plaintiffs should continue to be shown in the revenue papers and a note should be made in the column of remarks to the effect that the property has been sold.
6. Both the Assistant Collector and the Collector felt considerable difficulty in deciding about the nature of the tenure of the ahata in question. The zamindars being dissatisfied with the order of the Collector, appealed to the Commissioner who was also puzzled about the case. He considered that the present plaintiffs had failed to prove that they had any proprietary rights in the land, and, as such, their names could not be entered as proprietors. He also noted that as tenancy rights could not be sold the names of the plaintiffs could not be entered as tenants. He however observed that the status of the plaintiffs was "something superior to ordinary tenant's rights." The zamindars eventually filed an appeal in the Board of Revenue against the order of the Commissioner and the appeal was disposed of by a judgment delivered by Mr. Oppenheim, Senior Member of the Board of Revenue, with whose judgment the Junior Member, Mr. Walton, agreed. Mr. Opponheim noted in the course of the judgment that he was "somewhat puzzled about the correct entry to be made," but he held that he was satisfied that the entry which shows as tenants people who have severed all connexion with the land and who do not now claim to have any connexion with, it is an entry which leaves things too much in the air.
7. He considered that there was much to be said in favour of the view entertained by the Assistant Collector, and that the status of the occupiers of this land was not dissimilar from the status of under-proprietors in Oudh. He however observed that "in the absence of a decision of a civil Court" it was "not desirable that the revenue Court should commit itself to the extent of finding that the respondents have proprietary rights." He noted the fact that "the land was always treated as tenancy land, whether rightly or wrongly it is impossible to say." He also took note of the fact that at the settlement the land was treated "for the purposes of enhancement as occupancy land." In view of these reasons he concluded that the Commissioner and the Collector were right in holding that it was not for the revenue Court to "make any entry in the khewat about the "respondents." As a result of his findings he ordered the names of the present plaintiffs to be recorded in the khatauni in certain columns. The plaintiffs being dissatisfied with the order of the Board of Revenue, filed the suit giving rise to the present appeal. The cardinal question that arose for decision in the case was as to what was the nature of the tenure of the ahata in question. In the trial Court the plaintiffs claimed absolute proprietary title to the land on the basis of the alleged adverse possession of themselves and of their predecessors-in-title for a period of over 12 years. This contention of the plaintiffs was overruled by the trial Court on the ground that it was a matter of admission that the zarnindars all along realized rent of the ahata in question, and, as such, the possession of the occupiers could not be deemed to be adverse. In arriving at this finding the trial Court took note of the entries in the revenue papers in which all along the occupiers were shown as mere tenants. In the trial Court at a late stage of the case the plaintiffs claimed that their position, in any case, was that of under-proprietors. This contention of the plaintiffs was also overruled by that Court. But, in view of the various transfers of the ahata in question, to which reference has already been made, the trial Court concluded that originally the ahata was given on a lease "for building and manufacturing purposes." It, however, went on to observe that as the ahata had now assumed the character of agricultural land, the vendors of the plaintiffs were no longer lessees under the general law but agricultural tenants amenable to tenancy law and as such incompetent to make the transfer which is, consequently, invalid.
8. Having arrived at the conclusion that the status of the vendors of the plaintiffs was that of mere tenants the trial Court dismissed the suit. As already stated, the plaintiffs abandoned their claim to proprietary rights in the appellate Court, but maintained that their tenure was permanent and that they had a transferable and heritable right in the same. The appellate Court acceded to this contention of the plaintiffs and passed a decree accordingly.
9. We have noted at the very inception of this judgment that it is difficult, if not impossible, to ascertain with precision the origin of the tenure of this ahata and the terms and the conditions subject to which the tenure was created. It is, however, clear that in the year 1807 there was an indigo factory with appurtenant buildings in this ahata and that till, the year 1874 the major portion of the ahata was uncultivated. After the manufacture of the indigo dwindled or ceased, portions of the area of the ahata were brought under cultivation year after year. It appears from the revenue papers that by the year 1900 the major portion of the ahata was under cultivation, and so it is at present. The occupiers of the ahata were all along entered as occupancy tenants-but the rent payable to the zamindars was the fixed and invariable amount of Rs. 88-2-0. It is obvious that so long as a negligible area of the ahata was under cultivation the occupiers of the ahata could not be correctly described as occupancy tenants of the entire ahata. further, it is clear that occupancy tenants could not exercise the right of transfer, whereas in the present case we find that the ahata in question was the subject of numerous transfers and no exception to those transfers was ever taken byl the zamindars. The zamindars all along remained content with the receipt of the rent mentioned above and it is worthy of note that this rent was payable to the zamindars even when practically the whole of the ahata was devoid of cultivation. On these facts the conclusion is irresistible that originally the ahata was given by the zamindars to an indigo manufacturer on a perpetual lease at a fixed rental for building and manufacturing purposes. It must further be held on the facts stated above that the rights conferred on the indigo manufacturer were heritable and transferable. The position of the lessee and of his successors could not, therefore, be of agricultural tenants, nor can the mere fact of the ahata being brought under cultivation nullify the lease originally granted by the zamindars. It follows that the view taken by the lower appellate Court is correct and ought to be affirmed.
10. The view that we take receives support from an unreported decision of this Court in F.A. No. 60 of 1924 decided on 14th April 1927. That appeal arose out of a pre-emption suit. In that case one Mr. Dodsworth describing himself as the proprietor of an indigo factory, and the land appertaining thereto, in the district of Azamgarh, sold the same to certain persons. Some of the zamindars of the village then brought a suit for preemption. The vendees pleaded in defence that no proprietary interest was possessed by Mr. Dodsworth and a claim for pre-eruption could not, therefore, be maintained in accordance with the provisions of the Agra Pre-emption Act. This contention of the vendees was accepted both by the Court below arid by this Court. In deciding the appeal this Court made the following observation:
The land appears to have been let to Ms (Mr. Dodsworth's) predecessors in title for the purpose of building and running an indigo factory. A rent was reserved which has been regularly paid to the zamindars. The interest possessed by the occupier cannot therefore be proprietary interest but is analogous to that of a lessee of land for building purposes.
11. Although the origin of a tenancy may not be known, yet if it is proved that the tenant and his ancestors were in possession of the tenure for a long time and had built a pucca house on the same and from time to time the tenure had been transferred by succession and purchase without protest by the landlord, a Court is justified in presuming that the tenure is of a permanent nature. This was the view taken by the Calcutta High Court in A. Casperz v. Kader Nath Sarbadhikari ('01) 28 Cal. 738 and by their Lordships of the Privy Council in Naba Kumari v. Behari Lal ('07) 34 Cal. 902. For the reasons given above we dismiss this appeal. But in view of the fact that the plaintiffs ultimately abandoned the case as originally put forward by them in the trial Court and the relief eventually granted to them by the appellate Court was not the relief prayed for by them in the plaint, we direct the parties to bear their own costs of this litigation in all the Courts.