MEHER ALI Vs. KALAI KHALASHI

JUDGEMENT

(1.) This is an appeal by the defendants in an action in ejectment. The ancestor of the defendants executed a kabulyat in favour of the plaintiff on the 1st June 1889 in respect of the disputed land, which covers an area of six cottas. The original tenant died in 1910. On the 4th April 1911, the plaintiff commenced this action to eject the defendants who are his descendants, on the ground that as the household interest was not heritable, they had no right to remain in occupation of the land. The Courts below have decreed the suit. In support of the present appeal, it has been urged that the plaintiff was a raiyat at a fixed rate of rent and was competent to create, as he did, a permanent heritable interest in favour of his grantee, although the latter was an under-raiyat. It has not been disputed by the respondent, and in view of the decision in Hari Mohan v. Atal Krishna Bose 23 Ind. Cas. 925 (Rule No. 1260 of 1913 decided on the 17th June 1913) it cannot be disputed, that this result would follow if the plaintiff is a raiyat at a fixed rate, but it has been argued that he is not a raiyat of that description.

(2.) In the kabulyat executed by the ancestor of the defendants in favour of the plaintiff the interest of the latter is described as a kayemi karsha jote. The contention of the appellant is that the use of the term kayemi indicates that the plaintiff was a raiyat at a fixed rent. This position has been controverted by the respondent, and reliance has been placed on the decision in Fazel Sheikh v. Keramuddi Sheikh 6 C.W.N. 916 to show that the term kayemi does not necessarily indicate fixity of rent. Reference has also been made to paragraph 15 of the report of the Rent Law Commission, dated the 15th July 1880 published in the Calcutta Gazette of the 21st July 1880. The opinion was expressed by the Commissioners, as the result of their inquiries, that in Backergunj even the interest of a howladar is not held at a fixed rent, and this, indeed, was the view adopted by the Court in the case of Huromohan Mookerjee v. Ranee Lalun Monee Dassee 1 W.R 5. If the interest of a howladar does not imply fixity of rent, it is obvious that a subordinate tenant, whose interest is that of a kayemi karshadar, does not hold at a fixed rent. We are of opinion that the use of the term kayem imports not fixity of rent, but only permanence of occupation of the land, and this view is in accordance with that adopted in Gayratulla v. Girish Chandra Bhaumik 12 C.W.N. 175 and Fazel Sheikh v. Keramuddi Sheikh 6 C.W.N. 916. The position, then, is that the plaintiff was an occupancy raiyat and was not competent to create in favour of the ancestor of the defendants a permanent heritable under-raiyati interest.

(3.) It has been finally argued on behalf of the appellant that as the kabulyat is described as sthayee karsha kabulyat, the intention of the grantor, whatever restrictions there might have been on his own right, was to create a permanent and heritable interest in the grantee, and that, notwithstanding the provisions of Section 85 of the Bengal Tenancy Act, it is not open to him to question the validity of the grant made by him. In our opinion, there is no force in this contention, for the descriptin of the kabulyat as "sthayee Karsha" Kabulyat does not necessarily imply that the grantee was intended to have a permanent heritable interest. We must take that expression along with the description of the interest of the grantor himself, who was only an occupancy raiyat, and not a raiyat at a fixed rent; he could not consequently be assumed to have created in the grantee a permanent heritable interest in contravention of the express provisions of the law. In this view, no question of estoppel arises.