1. This is an appeal against a decree of the Subordinate Judge of Khulna, dated the 7th October 1901.
2. The suit out of which this appeal arises was brought by the plaintiffs to obtain possession of a half share in 50 bighas of land, which were let some time ago to one Ekabbar under a jungleburi lease.
3. The principal defendants Nos. 1 and 2 have purchased this land at an auction sale; and the plaintiffs now seek to eject them on the ground that the tenancy of Ekabbar was not of a transferable nature.
4. The defendants Nos. 1 and 2, on the other hand, contended the Lower Court that the interest of Ekabbar was that of a tenure-holder, and as such was transferable; or, if not, that it was a raiyati holding at fixed rates of rent, to which the provisions of Section 18 of the Bengal Tenancy Act are applicable.
5. Both the Courts below have found that the interest of Ekabbar in the land was not that of a tenure-holder, but that of a raiyat holding at fixed rates.
6. The plaintiffs appeal to this Court and contend that on the terms of the kabuliat executed by Ekabbar, his interest in the land was not that of a raiyat holding at fixed rates; and particular stress is laid upon a passage in the kabuliat, which runs as follows and which has been translated by the Subordinate Judge thus: 'Whatever increase in the production of the soil you may effect, and whatever measurement and jamabandi you may make, I shall abide by the same.'
7. That means to say, that if there is an increase in the productiveness of the soil at the expense of the landlord or in consequence of improvements made by him, the lessee is to pay at a higher rate; and if on measurement the area of the land should appear to be greater than that mentioned in the kabuliat, a greater amount of rent is to be paid at the same rate as that mentioned in the kabuliat.
8. The learned pleader for the appellants contends that the clause in the lease shows that the interest of Ekabbar was not that of a raiyat holding at fixed rates; and we think that this contention must prevail.
9. The kabuliat, which is undoubtedly a jungkburi kabuliat, provides for a progressive rate of rent up to the year 1284, when rent at the full rate of 12 annas per bigha was to be paid, and rent at this rate was to be paid in every subsequent year. The kabuliat does not expressly provide that the interest of Ekabbar was to be heritable or perpetual. It does not expressly exclude enhancement on any ground, and expressly provides for enhancement on the ground of increase in the productiveness of the soil, effected at the expense of the landlord. This would seem, having regard to the provisions of Section 30, Clause (c) of mo Bengal Tenancy Act, to be the meaning of the kabuliat. Now as both the Lower Courts have hold that Ekabbar was (sic) tenure-holder, and as we have come to the conclusion that (sic) was not a raiyat holding at fixed rates, in my opinion he must be a raiyat with occupancy rights. But however this may be, it is clear that the Subordinate Judge's finding that Ekabbar was a raiyat holding at fixed rates is incorrect.
10. We therefore decree this appeal and remand the case to the Court of First Instance for decision of the other questions, which arise in it.
11. The costs will abide the result.
12. I agree with my learned brother that this case should be remanded for enquiry into the matters indicated by him. But I do not agree with him that the interact created by the lease is a right of occupancy or is governed by the provisions regarding enhancement of rent of occupancy raiyats. The parties must be regulated by the terms of the contract. It is not a case of the creation of a right by statute as rights of occupancy are ordinarily considered to be.
13. The contract in this case does not stale in express terms that the interest created is permanent, neither does it say anything about transferability. The matter, therefore, is open for consideration whether the holding is transferable; and I use the word 'holding' because both the Lower Courts have held that the interest created by the lease is not a tenure. The Lower Appellate Court should in my opinion have considered the question whether, having regard to the terms of the contract between the parties and any other matters that might have been brought forward with regard to the incidents of similar holdings in the neighbourhood, the holding was transferable or not. If it holds that it was transferable irrespective of the question whether the right created by the lease is au occupancy right or not, the suit should be dismissed; but, if it finds otherwise, the suit should be decreed.
14. I agree with my learned brother that the interest created by the lease is not one covered by Section 18 of the Bengal Tenancy Act.