NILMAMUD SARKAR Vs. BOWL CHANDRA DAS

JUDGEMENT

(1.) IN this suit the plaintiffs sought to recover possession, with mesne profits, of certain Jalkars after declaration of their title thereto. It appears that the plaintiffs claim as lessees of certain darpatnidars, to whom they gave the qabuliats dated 20 Chaitra 1309 in proportion to the shares of those darpatnidars, that is to say, for 10 annas to Kedar Bukhsh Sirkar and others, for 3 annas to Goolamuddin and for the remaining 3 annas to Raj Chandra Shaha and others, including one Baharuddin. Baharuddin did not accept the plaintiff's qabuliat. The defendants denied the titles both of the plaintiffs lessors and the plaintiffs themselves and pleaded that the Jalkars did not, as the plaintiffs alleged, appertain to Lal Aria Hansraj. The plaintiffs suit has been dismissed by both the Courts below. The learned Subordinate Judge disposed of it solely on the ground that the plaintiffs qabuliats were not leases of the Jalkars and conferred no title on the plaintiffs. It may be stated that the plaintiffs never obtained possession of the property said to be leased to them the qabuliats being for the years 1310 to 1315 inclusive, and the defendants having been in possession throughout. We concur in the opinion expressed by the learned Subordinate Judge that the qabuliats were not leases and did not operate to transfer any interest in the property to the plaintiff. A lease of immovable property is defined in the Transfer of Property Act, Section 105, as " a transfer of a right to enjoy such property made for a certain time, express or implied or in perpetuity " for the considerations therein specified. Section 107 provides that a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent can be made only by a registered instrument. A qabuliat, which is only an undertaking by the prospective tenant to take the tenancy, is not a lease. We agree with the opinion to that effect expressed in Nand Lal V/s. Hanuman Das 26 A. 368; Kashi Gir V/s. Jogendro Nath Ghose 27 A. 136 and Turof Sahib V/s. Esuf Sahib 30 M. 322. IN some cases it might be open to the plaintiff to prove his tenancy aliunde but here it is clear that the plaintiffs were never in possession and that the tenancy never really commenced. Their title is leased entirely upon the three qabuliats, which as we have said, confer no title. This appeal, accordingly, fails and is dismissed with costs.