M.N. Mukerji, J.
1. The question which arises in this Rule is whether the Small Cause Court had jurisdiction to try the Suit. The plaintiff instituted the suit for recovery of a sum of Rs. 49 alleged to have been due as price of bhag paddy and straw. The plaint alleged that the land had been settled with the Defendant in the month, of Jaistha, and the Defendant had stipulated to deliver to the Plaintiff by the month of Falgoon a half share of the paddy and straw that would be grown on the land, and in case of default would be liable to deliver 25 per cent, more as bridhi or interest in accordance with local usage; that the defendant, in accordance with the aforesaid promise or stipulation, after having taken settlement of the land cultivated the land and grew paddy and straw of which the quantities were also stated and the price of half thereof was claimed together with interest as aforesaid. One of the objections taken in the written statement was that the suit was one for rent and so was not within the cognizance of the Small Cause Court. The Opposite Party in an affidavit filed in this Court has stated that this objection was not pressed at the hearing of this suit. This however is a question affecting the jurisdiction of the Court and there can be no waiver in a matter of this description.
2. The answer to this question would depend upon the determination of the question as to whether the Petitioner under the terms of the contract with the Opposite Party was a tenant or a servant, and in determining that question, the terms of the agreement and the whole of the circumstances must be taken into consideration.
3. On behalf of the Petitioner reliance has been placed upon the decisions of this Court in Shoma Mehta v. Rajani Biswas  1 C.W.N. 55 and Lalji Pandey v. Brahmadeo Pandey  16 C.W.N. 89 and upon the allegation in the plaint that the land had been settled with the Defendant and on the Plaintiff's evidence to the effect that it was so settled and on the finding of the Judge that the Defendant held the land. On behalf of the Opposite Party the cases of Kade Mandal v. Ahadali Molla  14 C.W.N. 629 and Sheikh Pokhan v. Rajani Kamal Chuckerbutty  23 C.W.N. 614 were relied upon.
4. It is unnecessary to refer to earlier cases which deal with this point, as most of them have been elaborately discussed in the judgment of this Court in the case of Lalji Pandey v. Brahmadeo Pandey  16 C.W.N. 89. As observed by Mookerjee, J., in that judgment there is no real conflict in the decisions bearing upon this question, and the real question to be determined first is whether the Defendant is a tenant or not, With regard to this matter each case will depend on its own facts.
5. In the case of Shoma Mehta v. Rajani Biswas  1 C.W.N. 55 the judgment proceeded upon the assumption that the suit is one for recovery of produce rent. In the case of Kade Mandal v. Ahadali Molla  14 C.W.N. 629 the contract alleged in the plaint made the bargadar a servant. In the case of Lalji Pandey v. Bruhmadeo Pandey  16 C.W.N. 89 the distinguishing features were that the claim was in respect of crops for 4 years and the claim was explicitly described as the malik's share; and these features enabled the Court to pronounce on the status of the defendant as that of a tenant. In the case of Sheik Pokhan v. Rnjani Kamal Chuhkerbutty  23 C.W.N. 614, the kabuliyat was described as one for agricultural labour for cultivating in partnership the khas khamar land the executant stipulated that every year before growing crops he would ask the grantor which kind of paddy was to be grown on which land, and shall grow paddy according to the grantor's desire, and further agreed to take the whole of the paddy to the grantor's house for threshing, and that he shall get the remaining paddy (after delivery of the grantor's share) as remunaration for cultivation, seeds, and looking after the labour instead of money in cash. This unmistakeably showed that the executant of the kabuliyat was a servant.
6. In the present case the distinguishing features of the cases noted above are entirely absent. The plaint on the face of it is for recovery of price of a share of paddy and straw. The expressions 'settlement' and 'hold the land' may be consistent with either view of the Defendant's status. If it was a tenancy, the period for which it I was to last is not stated. The words 'promise' and 'stipulation' are used, which point more to a mere contract; than to a contract of tenancy. On the face of this plaint therefore there was nothing to suggest that the Defendant was a tenant.
7. If therefore the Petitioner's case was that he was one and on that ground the Court had no jurisdiction, it was for him to bring before the Court materials which would have proved the same. This he has not done. The Rule, therefore, must be discharged with costs, hearing fee one gold mohur.