1. This appeal arises out of a suit for recovery of rent in respect of the land described in the plaint. The defence was that there was no relationship of landlord and tenant between the plaintiff and the defendant with respect to the land.
2. It appears that a certain Zemindari belonged to one Bazlur Rahim and his sister. His sister sold a six-annas share of the Zemindari to one Lachmipat Singh on the 1st December 1875. The remaining 10-annas of the Zamindari was sold in execution of a decree against Bazlur Rahim or his sister and the auction-purchaser of the said 10-annas share took possession of the entire sixteen annas. Lachmipat thereupon brought a suit for recovery of possession of the undivided 6-annas share of the Zamindari which had been conveyed to him by Bazlur Rahim's sister. He obtained a decree on the 23rd August 1880 and on the 23rd November of the same year, Lachmipat made a gift of the 6-annas share of the Zemindari in favour of one Mirza Ahmed Ali Beg. '
3. It appears from the deed of gift that Lachmipat was at the date of the deed in khas possession of a certain quantity of land (168 bighas) consisting of a garden and some paddy land situated within the Zamindari. It is the plaintiff's case that Lachmipat had in these lands Mourasi Mokarari right from before the acquisition of the Zamindari interest, and the main question for consideration in this case is whether the Zamindari interest in those 168 bighas of land, which includes the lands in suit, passed to the donee under the dead of gift. The interest of the donee in the 6-annas Zemindari has passed to the plaintiff and he, therefore, now claims the Zamindari interest in those lands. The defendant purchased the disputed land which remained in 'the possession of Lachmipat at an auction sale in execution of a decree against his son Chatrapat.
4. The Courts below have agreed in holding that Lachmipat reserved to himself the Zemindari interest in the 168 bighas of lands and that, therefore, the plaintiff could not recover rent from the defendant. It is stated in the deed of gift that the whole of the 6-annas share of the Zemindari (Touzi No. 182), for which the plaintiff had obtained a decree on the 23rd August 1880 in the Court of the Subordinate Judge of the 24-Pargannahs, was conveyed to the donee and that the donee was to pay the Government revenue payable for the six-annas share. By the deed, however, Lachmipat reserved to himself 168 bighas of land consisting of a garden and paddy lands attached thereto mentioned above.
5. The learned District Judge has held that the donor reserved the Zemindari right in the 168 bighas for himself. The fact that in the body of the document the Zemindari interest is described as six annas share with the exception of the lands mentioned in the schedule, would go to support the view taken by the District Judge. On the other hand, if, as alleged by the plaintiff, Lachmipat had Maurasi Mokurrari rights in those lands, then that fact, taken together with the fact that the entire 6 annas share in respect of which Lachmipat had obtained a decree was conveyed, raises an ambiguity, viz., whether the interest which was reserved by Lachmipat in the lands in suit was the Zamindari interest or the interest of a tenure-holder which he had from before the acquisition of his Zemindari. In these circumstances extrinsic evidence (including evidence as to the course of dealing with the property) may be taken into consideration, in construing the dead.
6. It is pointed out on behalf of the respondent that on each successive transfer of the six annas Zemindari, the land reserved by Lachmipat has been excepted. On the other hand, it is pointed out on behalf of the appellant that the donee got his name registered in respect of the entire six-annas share of the Zemindari without any protest or objection on the part of Lachmipat and that after each successive devolution of interest there has been such registration of name. Then again, reliance is placed upon a statement contained in a petition of objection made by the defendant in a claim case, in which the land is described as bearing a rental of Rs. 179 payable to the Sherista of Dinabandhu and Nagendra Kumar. Dinabandhu is the plaintiff in the present case. The learned District Judge in his judgment said: 'No doubt in Exhibit I there is an admission by the defendant that rent is paid for this land. The respondent has explained, and I think his explanation is a reasonable one, that he had at that time, namely, on the 20th of March 1905, only just come into possession of the land and he was not properly acquainted with the incidence of the tenancy.'
7. It is contended on behalf of the appellant that the defendant had purchased the property about 2 years before he made the statement in the claim case, and that there is no evidence in support of the finding that the defendant was not properly acquainted with the incidents of the property when this statement was made,
8. In these circumstances, we think that the case ought to go back to the lower Appellate Court for a further enquiry and re-hearing of the appeal. It may be mentioned that it is denied before us on behalf of the respondents that Lachmipat had any Maurasi Mokurari tenure in these lands before he acquired six annas share of the Zemindari. That question will be gone into by the Court below. It will be open to both parties to adduce fresh evidence on this question as also upon the question whether the defendant was or was not properly acquainted with the incidents of the property at the time when he made the statements in Exhibit I. The lower Appellate Court may direct the Court of first instance to take such evidence as the parties may adduce and send up the evidence to the lower Appellate Court.
9. Costs to abide the result.