1. This is an appeal by the principal defendant 1 and arises out of a suit for ejectment of the defendant. The plaintiff, now respondent, alleged that she acquired raiyati right in the suit land under a deed of gift from her mother, pro forma defendants, and that defendant 1 is an osat raiyat under her and that notice under Section 49, Ben. Ten. Act had been served on 18th March 1923. The plaintiff also alleged that defendants had violated some of the conditions of the previous decree which was passed by consent between the plaintiff's mother and defendant and failed to pay the yearly jama within the stipulated period. The defence of the defendant in substance is that the plaintiff is a tenure holder and that the suit is barred by the law of estoppel by reason of the stipulation contained in the previous consent decree which is to the following effect,
I (plaintiff) shall not be able to evict the defendant so long as the defendant pays the yearly rental of Rs. 20 within the year; in which it falls due.
2. The Court of first instance found that the status of the plaintiff was that of a raiyat and that of the defendant an under-raiyat. Consequently, as the solenama decree contained terms which contravened the provisions of Section 85, Ben. Ten. Act, it could not be given effect to. Reliance was placed on the Pull Bench decision of this Court in the case of Chandra Kanta Nath v. Amjad Ali Hazi A.I.R. 1921 Cal. 451. The Munsiff also found that the defendant had violated one of the stipulations in the consent decree in not depositing the yearly rent. The plaintiff's suit for khas possession was accordingly decreed. An appeal was taken against this decision by the defendant to the Court of the Subordinate Judge of Tippera and the learned Subordinate-Judge has affirmed the decision of the Munsif. He states that the only point urged before him was that the plaintiff was estopped from ejecting the defendant by reason of the solenama which contained the stipulation to which I have already referred. He states that no other points were placed before him. On this finding he affirmed the decree of the Court of first instance.
3. A second appeal has been taken to this Court and it has been argued that the findings of the lower appellate Court are insufficient to dispose of the appeal before him. It is said that as the question of plaintiff's status was drawn into controversy, the lower appellate Court and the Court of first instance should have come to the conclusion that the defendant was not a raiyat at fixed rent. The contention is that all that the lower Courts have found is that the plaintiff was a raiyat. I do not think that there is any substance in this contention. The question as to whether the plaintiff is a raiyat at a fixed rent was never raised in either of the Courts below. The question is not raised in the memorandum of appeal to this Court. All that the defendant said was that the status of the plaintiff was that of a tenure-holder. He asserts that in ground 3 taken in this second appeal. Lower Courts have to proceed on the state of the pleadings and not by making a new case for any of the parties. The solenama decree shows that, on the face of it, the plaintiff's interest was described as that of a raiyat. Consequently, it was not open to the plaintiff to grant a lease of the character which in its effect was of a permanent nature as the effect of the lease is to protect the defendant from eviction except in certain contingencies. Therefore, there cannot be any estoppel on the basis of the solenama as the status of the plaintiff was found to be that of a raiyat and the defendant was liable to be ejected. I think, in this view, the decision of the Courts below are right. The appeal is accordingly dismissed with costs.