BHABATARAN PAHARI Vs. TRALIAKYA NATH BAG

JUDGEMENT

(1.) The question involved in this appeal is what is the true meaning of a certain kabuliyat which is in evidence in this case and which is marked Ex. 1. The matter arises in this way. One Akshoy Jana, the grandfather of defendant 2 executed a kabuliyab some time in 1877 in favour of his landlord, plaintiff 1's father, in respect of the lands in suit. From the kabuliyat itself, it is apparent that the lands in question had been held by Akshoy Jana as tenant under plaintiff l's father for some considerable time prior to 1877. The terms of the tenancy were in 1877 reduced into writing and the kabuliyat was in fact not the origin of the tenancy but a confirmatory document. It appears that defendant 2 was in 1327 B. S. in possession of the said lands. By a kabala executed sometime in that year, he conveyed the lands to defendant 1 and gave up possession. It is said that he removed his house and went to live elsewhere. The plaintiffs contention in this suit is that; inasmuch as the lands formed a non-transferable occupancy holding, defendant 1 did not and could not acquire any rights whatsoever under the said kabala and that there having been an abandonment of the holding by the tenant, the plaintiffs are therefore entitled to recover khas possession. The Court of first instance examined the terms of the kabuliyat and came to the conclusion that the tenancy in question was of a permanent character and it accordingly dismissed the plaintiffs suit. An appeal was taken by the plaintiffs to the learned Subordinate Judge of Midnapur who however dismissed the appeal. It is against the last mentioned decree that the present appeal has been brought.

(2.) The real question is, as indicated above, what is the meaning of the kabuliyat which is the governing document in this case. The kabuliyat is in Bengali and has been read out to us. The provisions therein, shortly stated, are as follows. The executant refers at the outset to the circumstance that he had been, previous to the date of the execution of the document, holding for some considerable time the lands, measuring about 14 1/2 cattas, under an oral demise and had been paying the rents regularly every year in respect thereof. Those lands had then included a bari (i.e., the tenants residence) and it is stated that the tenant had been cultivating the lands adjoining thereto. The executant then goes on to state that he being desirous of having a registered patta and kabuliyat in respect of the said lands, the kabuliyat in question was being executed. A description of the premises demised then follows and it is apparent therefrom that the area was 14 1/2 cattas, that it included the said bari or residence with surrounding coconut, mango, and other trees and a tank. The executant then proceeds to state that in respect of the said lands a yearly fixed rent of Rs. 6 in company's coin had been agreed upon and that he was obtaining a potta or lease thika mokra. It is further stated that the executant would pay year by year into the landlord's office or sherista the said yearly rent according to certain instalments as specified in the said kabuliyat and would obtain duly signed receipts (dakhilas) from the landlord and that, if any payments were made by him without obtaining such receipts, no credit would be allowed to the tenant in respect of the same.

(3.) If there was default in payment of any one instalment the tenant undertook to pay interest thereon at the rate of half-anna per rupee per mensem. If in the matter of the payment of rent, default was made and difficulties were raised the landlord would be entitled, without obtaining an istafa or relinquishment from the tenant, to evict the tenant and to let out the lands by settling the same with fresh tenants and to take legal steps, for the recovery of the arrears of rent as might be due with interest thereon as also expenses incurred in Court against the tenant or, in the event of his death against his successor-in-intere3t and to that no objection by the tenant or his successor-in-interest would be valid. It is also stated in the kabuliyat that without the landlord's consent trees could not be cut down or new tanks dug and that the tenant would not be able to transfer the lands by sale or mortgage and that, if such sale or mortgage took place, the same would not be valid and binding on the landlord and that the landlord would be entitled in such event to recover damages with interest thereon for the tenant or his successor-in-interest and if any new taxes or charges on lands were imposed by the State, the same would have to be paid separately by the tenant. Lastly, there was a provision by which the tenant undertook to preserve the boundaries as of old.