MAKBUL ALI CHOWDHURY Vs. SASI KUMAR MALLA

JUDGEMENT

(1.) The contention that has been urged in this appeal is that the Subordinate Judge was wrong in holding that the tenancy in suit is governed by the Transfer of Property Act and that the Munsif who tried the suit had rightly held that the Bengal Tenancy Act applied to it.

(2.) The subject-matter of the tenancy is a tank with its banks and a plot of land adjoining thereto. It had its origin in a kabuliyat the material portion of which runs in these words: I shall graze cattle on the banks after fencing them all round. I shall rear now fish and catch them and shall not make any objection to your catching the old fish. I shall enjoy the fruits of the fruit-bearing trees now existing on the banks. I shall be entitled to catch fish throughout the year and shall not be competent to raise objection to your catching fish on any festive occasion. If 1 fill up the tank without your permission I shall not be entitled to raise any objection to your getting khas possession of it. I shall always clear the weeds of the tank and if the tank is not cleared I shall be liable for damage.

(3.) Were these terms the only materials from which the purpose of the tenancy had to be determined, I would have agreed with the respondents contention that it was not made out that the tenancy was for agricultural or horticultural purposes. The defendant's (appellant s) case in the written statement was that he had cultivated paddy, etc., on the lands and had grown fruit trees on the banks of the tank, and that he had not used the lands for the purpose of grazing. The Munsif held that he did not cultivate the lands, but used the same for the purposes of grazing. This finding has not been reversed by the Subordinate Judge. On this finding the defendant seeks to argue that the grazing was for a purpose ancillary or incidental to his cultivation of other lands in the village, in respect of which he is a settled ryot as is shown by the khatian. Whether having put forward a definite case which failed, the defendant can be, or at any rate should be, permitted to construct another case upon the findings that have been arrived at against him, may be debatable question. But, in my opinion, there is much surer indication than all this in the kabuliyat itself as regards the status of the defendant which it purported to create.