BANAMALI DAS Vs. KAMALA KANTA MAJUMDAR

JUDGEMENT

(1.) This is a defendant's appeal in an action for ejectment under Section 44, Clause (c) of the Bengal Tenancy Act-The Courts below have decreed the suit. The facts of the case so far as they are relevant for the purposes of the present appeal and which are not in dispute now are as follows: The plaintiff is the landlord of the holding. The defendant came upon the land as a non-occupancy raiyat after executing a kabuliyat in plaintiff's favour on Chaitra 18, 1325 B.S. The material portion of the kabuliyat is as follows: I will be your tenant in respect of 15 gds. of land at an annual rent of Rs. 15 for a period of five years. I will pay the stipulated rent to you every year and take dakhilas signed by you. Without such a dakhila I will not be entitled to claim exemption from payment of rent. After the expiration of the term I will take a fresh settlement. I will preserve the boundary of the land. If the area of the land be found to be more, I will pay additional rent and if it be found less I will get proportionate abatement of rent. At the end of the term if I cannot make a fresh settlement, I will continue to be tenant under you as before and pay the aforesaid rent as the rent settled.

(2.) After the expiration of five years from the date of the kabuliyat the tenant did not enter into a fresh engagement. He was, however, dispossessed. He filed a suit tinder Section 9 of the Specific Relief Act but failed. He thereafter instituted a regular suit for possession impleading the landlord as a defendant on the strength of the kabuliyat in the year 1927 and succeeded in recovering possession. On September 5, 1929, i. e., after the expiration of ten years from the date of the Kabuliyat the landlord instituted the present suit for ejectment on the ground that the term of the lease expired at the end of 1335 B.S.

(3.) It is conceded by the learned Advocate for the plaintiff-respondent that if the terms of the kabuliyat relating to the tenant's right after the expiration of five years from the date of the kabuliyat indicate simply a covenant for renewal for a further period and not a present demise for a further term, the provisions of Section 44, Clause (c), would not be attracted and plaintiff must fail. It is also conceded by the learned Advocate that if the demise be for an indefinite period after the first five years, plaintiff would also fail. The learned Advocate for the appellant also concedes that if these terms created in substance a present demise for 10 years only, plaintiff's suit must succeed.