MIDNAPUR ZAMINDARI COMPANY LIMITED Vs. NARESH NARAYAN ROY

JUDGEMENT

(1.) THIS is an appeal from the judgment of the High Court at Calcutta affirming a judgment of the Subordinate Judge by which he decreed khas possession of certain reformed and accreted chur lands in favour of the plaintiff. The plaintiff is a zamindar and the lands in question are admittedly within his zamindari. The existent lease of the lands having, as he contended, expired, he gave the necessary notice to terminate the tenancy. The appellants plead that they are occupancy tenants and as such entitled to maintain possession under the terms of Act X. of 1859 (the Bengal Rent Act).

(2.) THE appellants are the successors by transfer to the firm of Jardine, Skinner & Co., who were prior to 1864 in occupancy of the lands, the zamindar at that time being the respondent's father, to whom he has succeeded. In that year the respondent's father raised an action against Jardine, Skinner & Co., claiming the lands in question. That suit was compromised. At the same time Jardine, Skinner & Co. took a lease of the whole taluk within which the lands were situated. Patta and kabuliyat were executed.

(3.) THE case accordingly depends upon the proper interpretation of this clause in the ijara. The learned judges of the appellate Court have held that the clause is practically indistinguishable from the clause which was the subject of decision by this Board in the case of Jardine, Skinner & Co. v. Surut Soondari Debi L.R. 5 I.A. 160. There, as here, there was a lease of other lands besides the lands in question, and the words of the kabuliyat are as follows: "Having fixed a yearly rent of Rs. 609 4a. for your nij share of 20,950 bighas, describing them as per boundaries given in the schedule below, you have included it in the aforesaid ijara rent of Rs. 4417 9a. 5r. I shall be in possession of the said chur as a jote. Upon the expiration of the term of the ijara of the said mahals, a pottah and kabuliyat will be respectively given and taken in respect of the jote, regard being had to the quantity of land and amount of rent that shall be determined to belong to your nij share in accordance with the productive power of the land within the area determined by a measurement of the said chur. If I do not take a pottah and give a kubuliyat within two months after the fixing of the rate of that land, you will make a settlement with others."