DHARANI KANTA LAHIRI CHOWDHURI Vs. ISMAIL SHEIKH

JUDGEMENT

(1.) THIS is an appeal from the decision of the learned Special Judge of Mymensingh, dated the 16th August 1915, dismissing an appeal from the judgment of the learned Assistant Settlement Officer of the same place. The only question involved in the appeal is whether the defendants, the tenants, are entitled to the presumption mentioned in Section 50 of the Bengal Tenancy Act. It is common ground that the tenants are holding under the terms of a document in writing and the question is whether that document was the origin of the tenancy or whether it was merely confirmatory of a preexisting tenancy. I have come to the conolu- sion that the document was not confirmatory nor was the origin of the tenancy under which the defendants hold. The term granted was a term of five years and it was provided by the document that at the expira-tion of that term, the landlord would be entitled to mike a settlement of the land with whom he pleased and it seems to me quite impossible on those terms to hold that the document which gave tenants a lease for a particular term at a fixed rent and which gave to the landlord the right at the expiration of that term to settle the land with whomsoever he pleased, can be taken as a mere recognition of a pre existing tenancy. It is also to be noticed that under the rent law as existed at the time when the Jcabuliyat was executed, there was nothing to prevent a tenant from surrendering a right of occupancy in favour of the landlord. Whether the bargain that was entered into between the parties, was not a prudent one it is not for us to say, but in my opinion, the document negatives the presumption under Section 50 of the Bengal Tenancy Act. In that view, the present appeal ought to be allowed and the case will be sent back to the Court of Appeal below for settling the rent. The appeal will stand dismissed as against respondent No. 13 in regard to No. 7 khatian. We make no order as to costs.

(2.) SHAMSUL Huda, J.--I agree.