1. This is a plaintiff 's appeal and arises out of a suit for a declaration that a kabuliyat dated the 26th January 1921, executed by the defendant in favour of the plaintiff is null and void as against the plaintiff. The plaintiff executed a general power-of-attorney in favour of two persons named Bishambhar Das and Genda Mal on the 2nd February 1918. By the power-of-attorney the said mukhtar-i-ams are authorised to grant leases in respect of the property belonging to the plaintiff. The plaintiff's case was that she never consented to empower the said mukhtar-i-ams to lease out her property, and that the said condition in the mukhtarnama was entered without her knowledge. She further alleged that the said mukhtar-i-ams got the defendant to execute a kabuliyat reserving a nominal rent in favour of the plaintiff without her knowledge for their own benefit. It was further alleged that no lease had been executed by the plaintiff in favour of the defendant, and as such no transfer had taken place in favour of the defendant.
2. The defence to the suit was that the mukhtar-i-ams of the'plaintiff were authorised to accept a kabuliyat from the defendant, and that, as a matter of fact, the kabuliyat was executed with the knowledge and consent of the plaintiff, and that the rent reserved by the kabuliyat was a fair rent.
3. The trial Court held that the mukhtar-i-ams of the plaintiff were in collusion with the defendant, and that without the plaintiff's knowledge got the kabuliyat executed by the defendant, 'and that the real.persons who stood to gain by the kabuliyat were the mukhtar-i-ams and not the defendant.
4. On these findings the trial Court passed a decree in the plaintiff's favour in.terms of the relief prayed for in the plaint. On appeal by the defendant the lower appellate Court reversed the decree of.the trial Court and dismissed the, plaintiff's suit.the lower appellate Court held that the plaintiff duly authorised her mukhtar-i-ams by the mukhtarnama executed by her, to grant leases of her property and that the mukhtarnama was actually read out to her, and that, she was aware of the powers given, to the, mukhtar-i-ams. It further held that the property covered by the kabuliyat not being agricultural land, the defendant by the kabuliyat acquired the rights of a lessee, and that the plaintiff was not entitled to assail the rights of the defendant simply on the ground that a lease had not been executed.
5. It is clear that the lower appellate Court did not in the way affirm or modify the finding of the trial Court with respect to the collusion between the defendant and the mukhtar-i-ams,: of the plaintiff, nor, in the view that we take of the case, is it necessary for us to record a finding on this point. It has been held by this Court in the case of Kedar Nath v. Shankar Lal A.I.R. Rule 1924 All, 514, that a kabuliyat executed by the person occupying the premises and accepted by the person owning the premises is not sufficient to bestow title upon the person occupying the premises, and can in no way be considered a lease as defined by Section 105 of Act 4 of 1882. That being so it is clear that by the more execution of a kabuliyat the defendant did not acquire the rights of a lessee With respect to the property owned by the plaintiff. It appears that on the basis of the kabuliyat the defendant succeeded in securing mutation of names in his favour in the revenue papers. This action of the defendant furnished a cause of action to the plaintiff for the institution of the present suit.
6. As no lease has been executed by the plaintiff the kabuliyat does not entitle the defendant to claim the rights of a lessee and accordingly the plaintiff was entitled to the decree granted to her by the trial Court.
7. For the reasons given above we allow this appeal, set aside the decree of the lower appellate Court, and restore the decree of the trial Court with costs in all Courts.