1. This is plaintiff's appeal against the decision of the District Judge of Chittagong dated 14th August 1925 which affirmed a decision of the Munsif of Fatickchari dated 27th August 1924.
2. Plaintiff brought the suit in which this appeal arises to recover possession of the disputed land from the defendants on the ground that he is a raiyat and that the predecessor of the defendants Rahamat Ali had dar-raiyati right under him and that Rahamat Ali having died the defendants have acquired no right to the dar-raiyati as the said interest is not heritable.
2. The defence of the defendants was that the plaintiff was a raiyat at fixed rate in respect of the land in suit. He granted a permanent and heritable jotedari right to the defendants' predecessor Rahamat Ali by a patta executed in the year 1258 M.E. 1896 and the plaintiff was estopped from denying defendants' title to the land and from claiming khas possession. The Munsif held that the plaintiff was a raiyati at fixed rent and was competent to grant a permanent heritable lease to the defendants' predecessor. To this suit for khas possession a claim for arrears of rent for 1283 and 1284 M.E. was joined. The Munsif dismissed plaintiff's claim for khas possession and decreed the claim for arrears of rent.
3. An appeal was taken by the defendant to the District Judge. The learned District Judge held that the status of the plaintiff was not that of a raiyat at fixed rent, but was that of an occupancy riayat. The learned District Judge, however, came to the conclusion
that the plaintiff was estopped from setting up that the interest created by the patta was darraiyati and dismissed plaintiff's appeal.
4. A second appeal has been taken to this Court and it has been strenuously argued by the learned vakil for the appellant that the patta on the face of it shows that the interest of plaintiff's predecessor was that of a raiyat and that therefore the patta which purported to grant a permanent heritable dar-raiyati lease contravened the provisions of Section 85, Ben. Ten. Act, and could not be admitted in evidence and is not operative as a permanent lease between the plaintiff and the defendants' predecessor and on the death of the defendants' predecessor the tenancy must be taken to have been terminated. Reliance is placed on the decision of the Pull Bench in Chandra Kanta v. Amjad Ali A.I.R. 1921 Cal. 451, and it is contended that the present case is governed by the first of the three propositions laid down by the Full Bench. I cannot accept this contention, for it would appear from the statements contained in the patta of 1258 that plaintiff represented to the defendants' predecessor Rahamat Ali that his status was not that of an ordinary occupancy raiyat, but of a raiyat whose interest was transferable, for it is stated that it was the original raiyati of Abinas Chandra Acharjya and had been purchased at an auction by Sarat Chandra Mahajan. The lease which was granted to Rahamat Ali was described as 'bundobasti istemrari daimi kayemi harsana jotedari.' The word 'daimi' means
relating to what is perpetual the perpetual1 settlement of the revenue. See Wilsons, Glossary, p. 119.
5. So it was intended to convey the notion of fixity of rent. The word 'diami' imports the notion of fixity of rent. It is stated that in certain localities in Chittagong kayemi raiyats have written leases at fixed rates of rent so that plaintiff by the patta purported to grant a permanent lease with a fixed rental and he represented that his own interest was that of a raiyat whose interest was transferable : see District Gazeteer of 1908 (Chittagong), 152. These representations would certainly convey the impression that the plaintiff was a raiyat at a fixed rent. The learned District Judge says,
the only way in which the terms of the patta can be made consistent is by interpreting raiyati' to mean raiyati at fixed rent.
6. The plaintiff in his evidence does not deny that he represented himself to have mokarari rights; on the contrary he says that he does not know whether his interest is mokarari or not. Plaintiff's raiyati was acquired by auction purchase by his brother Sarat. The sale certificate has not been produced, and the fact that permanent lease at a fixed rental was being granted in respect of a raiyati which was transferable carries with it the plainest implication that the raiyati was a raiyati at a fixed rent, which alone is transferable under the law without the consent of the landlord. The case, therefore, falls within the second proposition laid down by the Pull Bench as the patta was granted by the plaintiff who, on the face of the document, professed to have a higher status than that of a raiyat and consequently the defendant may rightly invoke the doctrine of estoppel and plead1 that the plaintiff cannot be permitted to prove that his status was not that of a raiyati at fixed rent.
7. The defendants' predecessor and the defendant after his death had been in possession since 1888 under the patta. I think the lower appellate Court has put a correct interpretation on the patta. The appeal fails and must be dismissed with costs.