1. This appeal arises out of a suit brought by the plaintiff for recovery of possession of certain lands on the allegations that he let out these lands to the defendant for a period of nine years and the defendant executed a kabuliyat on the 28th June 1906. This suit was brought after the expiry of the term of the lease after notice to quit was served upon the defendant. The defence of the defendant was that he never executed the kabuliyat and that the plaintiff was a niskardar; therefore he was a tenant under him and that, therefore, the defendant was a raiyat and as such was not liable to ejectment after the expiry of the term of the lease.
2. The Court of the first instance found that the defendant did execute the kabuliyat and that the lands were garden lands and let out to the defendant not as a raiyat, and as the term of the lease had expired ho gave a decree for possession to the plaintiff.
3. On appeal by the defendant there was a remand by the lower appellate Court and on a second appeal to this Court that order of remand was modified and ultimately the case went again before the trial Court and the trial Court again came to the same conclusion as it did before and gave a decree to the plaintiff for possession. Against that decree the defendant appealed to the learned District Judge who has reversed the decree of the Munsif and has dismissed the plaintiff''s suit.
4. The learned District Judge begins by saying that because the plaintiff is a niskardar, therefore, the defendant must be a raiyat, a conclusion which does not necessarily follow. The main question was what was the status of the defendant upon a proper and true construction of the lease under which he entered into possession? The learned District Judge does not at all direct his attention to that question as the primary question, because he has already assumed that the defendant must be a raiyat. The learned District Judge, however, finds that as the kabuliyat shows that there are some fruit trees on the land the purpose of the tenancy must necessarily be horticultural; and on that finding he dismisses the plaintiff''s suit.
5. The present appeal, as I have already stated, is by the plaintiff. The learned vakil for the appellant contended that on a proper construction of the kabuliyat the learned District Judge ought to have held that the defendant was not a raiyat but was a tenant of a piece of, as the kabuliyat described, bagat land. The kabuliyat, it was submitted, does not show that the lease was intended for agricultural or horticultural purpose, and, therefore, the defendant could not invoke the provision of the Bengal Tenancy Act for resisting the plaintiff''s claim.
6. We are of opinion that the contention of the appellant is well founded. The kabuliyat shows that the lease was for a piece of bagat land and it contains no indication that the defendant was to be treated as a raiyat or that the purpose of the tenancy was agricultural or horticultural. The limitation as to the rights of the defendant indicated in the kabuliyat would clearly show that the lease was neither intended to be an agricultural lease nor a horticultural lease. We think, therefore, the defendant is bound by the contract he made; that is to give up possession of the land after the expiry of nine years.
7. In this view we think the decree made by the learned Munsif is correct; and we restore that decree with costs both of this Court and of the lower appellate Court.
