1. This is an appeal by the defendant from a decision of the learned District Judge of Rangpur, dated the 6th May 1915, reversing the decision of the Officiating Munsif of Gaibanda. The suit was brought by the plaintiff, a raiyat, to eject the defendant, an under-raiyat, whose term had expired. Against the plaintiff's claim, the defendant pleaded that the kabuliyat which he had executed in favour of the landlord, the plaintiff, had been obtained from him improperly and so he was not bound by the terms thereof. That point has been found against the defendant. The kabuliyat contained a condition to the following effect: On the expiry of the term of the lease, I shall take a second settlement. Unless I do so, I shall have no interest in the land.' The defendant has not taken a fresh settlement and, according to his contract, he is to have no interest in the land. He never said that he was willing to take a fresh settlement and he never expressed his willingness until after the close of the evidence and apparently until the case was being argued. The defend ant s case was that he was not bound by the terms of the document at all; and the case whether he had always been ready and willing to perform his part of the contract by taking a fresh settlement was never tried, If that case had been in issue instead of the case as to whether the defend-ant was or was not bound by the terms of the agreement, the plaintiff might have produced evidence to show that the defendant far from being ready and willing to perform the contract was in default and had been in repeated defaults. It is quite true, as Mr. Gupta, who appears for the defendant-appellant, says, that in a case of this nature, the time is not the essence of the contract unless it is made so. But not with standing that except the statement made before the learned Judge, there is nothing to show that the defendant was ever ready and willing to perform his part of the contract; and, unless he was ready and willing to perform his part of the contract, the plaintiff was entitled to eject him. It is only when he proves that he was ready and willing that he would be able to plead an equitable defence against the plaintiff's right to possess the land. In this case, if the defendant meant to rely upon this point, he ought to have set it up in his written statement and had a distinct issue raised on it instead of pleading a false case as it turns out to be that the kabuliyat had been taken from him by improper means. Although the reasons given by the learned Judge in his judgment express somewhat too broadly the duties of the defendant under the terms of the agreement. I am satisfied that this defendant never did set up in the suit, until he was far too late, that he was willing to be bound by the obligation in the kabuliyat and that he had always been ready and willing to perform his part of the contract. That case cannot be properly decided without having the point raised in proper time and without having an issue properly framed on the point and evidence taken on both sides as to whether the defendant's statement is or is not true I think, on the whole, that the result arrived at by the learned District Judge decreeing the plaintiff's suit is correct.
2. The present appeal, therefore, fails and must be dismissed with costs.
3. I agree.