1. A. H. KHAN, J.-This Second appeal was preferred by the Province of East Pakistan which is defendant No. 1 in a suit brought by plaintiffs-respondents Abdul Jalil and others, in the 1st Court of the Subordinate Judge, Jessore, for declaration of their tenancy right to the suit land which was originally a `bzel' and confirmation of possession therein and also for a permanent injunction against the principal-defendants. The disputed property consists of an area of 7'48 acres of land in plots Nos. 1214/1258 under Khatian No. 133 of Monza Char Salamat P. S. Mohammadpur. It was recorded in R. S. Khatian as `beel' known as Sonadoha Beel in the possession of one Abhilash Mondal under the heirs of the late Zemindar Raja Birendra Chandra Singha Roy who were owners of Touzi No. 5572 of Jessore Collectorate to which the suit land appertains.
2. It is an admitted fact that the been was settled with pro forma-defendant No. 24 Mahbubar Rahman, then serving as an Hony. Magistrate, at an annual rent of Rs. 25 by the Provincial Government, sometime in 1924. It would appear that at the time of this settlement with pro forma- defendant No. 24, the Touzi had become a khas Touzi of the Government. The settlement with pro forma-defendant No. 24 according to the plaintiffs, was a permanent one and in 1947 Mahbubar Rahman settled the land with the plaintiffs at an annual rental of Rs. 25.8 and an amalnama was executed in respect of the settlement in that year. Further case of the plaintiffs is that as the principal defendants Nos. 5 to 19 who have lands contiguous to the disputed land could not take settlement of the same from pro forma-defendant No. 24 they approached the Revenue Officers of the Provincial Government (defendants 2-4) and persuaded them to make unauthorised settlement of the suit land in their favour on 7-12-1957. Hence the present suit.
3. The suit was contested by filing two written statements one on behalf of the defendants Nos. 1 and 4, Government of East Pakistan and three of its Officers, and the other by defendants 5, 6 and 8 to 11 and 16 to 19. According to the contesting defendants the settlement with the defendant No. 24, was for a period of 12 years from 1-4-1924 to 31-3-1936 and after the expiry of the lease, the principal defendants 5 to 19, owners of the bordering lands gradually extended their possession to parts of the suit land as accretion to their lands as the been gradually silted up and the Government in recognition of their right, settled the disputed land with the defendants 5 to 19 by the aforesaid order dated 7-12-1957.
4. Various issues were framed in the suit and issue No. 6 is as follows:- "(6) Have the plaintiffs acquired any right title, or interest in the suit property by their alleged settlement from defendant No. 24 Mahbubar Rahman. Is the story of their settlement from him true? If so, what is the plaintiff's right in suit property ?"
5. On a consideration of the evidence, oral and documentary, the learned trial Court found that the settlement with the pro forma-defendant No. 24 was not for a fixed period and that at the time of the settlement with the plaintiffs by pro forma-- defendant No. 24 the latter had the right to settle, the land with the plaintiffs. The learned trial Court further found, inter alia, that at the time of the settlement Mahbubar Rahman was in possession of the suit property and thereafter the plaintiffs have been in possession of the same, and accordingly the trial Court decreed the suit, declaring that the plaintiffs had acquired tenancy right to the suit land under the Govern--ment of East Pakistan and also granted the other reliefs prayed for.
6. The learned appellate Court below on consideration, of the various points raised before it upheld the above findings of the trial Court and dismissed the appeal.
7. The first point urged by Mr. Siddique Ahmed Chowdhury, learned Assistant Government Pleader, appearing for Govern--ment of East Pakistan, is that the learned Court below erred in law in not holding on the documentary evidence on record that proforma-defendant No. 24 held the disputed beel in fishery right for a period of 12 years and no permanent tenancy right was created in his favour. Now, no document making the settlement with pro-defendant No. 24 Mahbubar Rahman (P. W. 1) has been produced by either party. The plaintiffs, however, have examined pro forma. Defendant No. 24 and have also produced rent-receipts Exh. 2 series and certain other documents to show that the lease with Mahbubar Rahman was a permanent one and he paid rents to the Government. The rent receipts Exhs. 2 to 2 (d), according to the evidence on record, were granted by Nurul Islam, a Rent Collector of the Government and they show payment of rent by Mahbubar Rahman for the disputed land from 1931 to 1942, while the certified copy of Tenants Ledger, Part 11, Exh. 3 shows that Mahbubar Rahman continued to pay rents from 1938 to 1952. Pro forma-defendant No. 24, has stated in his evidence that he took the lease from the Government permanently. On behalf of the Government reliance was placed on Exh. A-1 which is a-- letter written by the Sub-Divisional Officer, Magura, to the Collector of Jessore, dated the 2nd December 1931. This letter contains a proposal for fresh settlement of Touzi No. 5572 which had been previously temporarily settled for a period of 10 years and in it occurs the following statement in respect of the disputed holding :- "In the year 1924 the fishery holding having been abandoned by the tenant Abilash Malo it was settled with Moulvi Mahbubar Rahman at only Rs. 25 for 12 years with effect from 1st April 1924 to 31st March 1936 (Vide, Collector's order on Magura S. D. Os. On 887 dated 20-4-25)."
8. It was further stated in the said letter :- "As the settlement of the fishery holding was effected for 12 years with effect from 1st April 1924 to 31st March 1936 the term of that settlement has not yet expired."
9. It should be mentioned here that according to the evidence, Abilash Malo with whom the beel was first settled gave it up as it was partially dried up and- fishing was no longer profitable and when in 1924 Muhabubar Rahman, an Honorary Magistrate at that time, took its settlement, he cultivated the dried up portions through bargadars and fishing was done in the watery area and thereafter the beel in course of time became completely dried up and was converted into culturable agricultural land. In spite of the use of the expression "fishery" in the letter Exh. A(I) the evidence on record niakes it clear that the entire disputed land in course of years became arable land and Mahbubar Rahman held it as such and his name was also recorded in Tenants Ledger 11, Exh. 3 which it is frankly admitted by the learned Assistant Government Pleader is the Ledger for tenants of agricultural lands. Both the Courts below have held the entries in Tenants Ledger Exh. 3 and rent receipts Exh. 2,4 series, which are in respect of agricultural tenancies, to be genuine and these findings of fact cannot be disturbed by this Court.
10. Now, though the above letter dated 2/3 December 1931, Exh. A I) shows that the settlement was only for a period of 12 years up to March 1936, in view of the entry in the Tenants Ledger, Exh. 3 showing payment and acceptance of rent from Mahbubar Rahman during the period 1938 to 1952 (even after the expiry of the period of lease) and the oral evidence of Mahbubar. Rahman, the learned appellate Court below came to the conclusion that the settlement was a permanent one.
11. Now, the question of the nature of the tenancy as conceded by Mr. Khondker Mahbubuddin Ahmed, the learned Advocate for the respondents, being a mixed quesion of fact and law, may be gone into by this Court in this Second Appeal.
12. It is clear that the finding that the settlement with Mahbubur Rahman was a permanent one is not at all warranted by the evidence on record. That the settlement had been for 12 years is clearly established from Exh. A-1. In the face of Exh. A(I) the learned Courts below were not justified in presuming that had the Tenants Ledger of 1924 and thereafter been produced, it would not have supported the defendant's case .Of temporary settlement, for a term of 12 years. The subsequent possession, of Mabbubar Rahman after 1936, was obviously as a tenant from year to year by holding over and not as a trespasser, irrespective of the question whether the tenancy was one under the Transfer of Property Act, or under Bengal Tenancy Act. This view is supported by the decision in the case of R.I Sahib Pandit Chanderika v. Central India Railway Co. (39 C W N 552 (P C)), in which their Lordships of the Judicial Committee of the Privy Council held that when a tenant continues to stay on the land after the determination of the lease on the terms of the lease and on payment of rent, his possession cannot be adverse to the landlord. This was a case of lease of land with Railway employees for construction of quarters and therefore, governed by the Transfer of Property Act. It is, however, now well settled that when an agricultural tenant holds over and pays rent his possession, too, is that of a tenant by holding over, the tenancy in such a case being from year to year. Reference in this connection may be made) to the cases of Administrator-General v.
13. Asraf A.I (I L R 28 Cal. 227); Chandra Nath v. Sk. Inamdi (34 C L J 369); Krishrri Lal v. Administrator- General (2 C W N 303); A.I Mamud Pramanik v. Bhagabati Debya (2 C W N 525) and Safar A.I v.
14. Abdul Majid (31 C W N 282).
15. It is true that section 117 of the Transfer of Property Act provides that the provision of section 116 of the Act will not be applicable to the agricultural tenancies. The principle ofholding over in respect of agricultural land, seems to be founded on the general principle laid down in Woolfall's on Landlord and Tenant (Special Edition for India, 1954, page 294) which is in the following terms: "Where a tenant for a term of years holds over after the expiration of his lease, he becomes a tenant on sufferance ; but when he pays, or expressly agrees to pay, and subsequent rent, of the previous yearly rate, a new tenancy from year to year may thereby be created upon the same terms and conditions as those contained in the expired lease, so far as the same are applicable to and not inconsistent with a yearly tenancy."
16. "A demise by a tenant from year to year to another also to hold from year to year is in legal operation a demise from year to year only during the continuance of the original demise to the