C.C. Ghose, J.
1. The question involved in this appeal is what is the true meaning of a certain kabuliyat which is in evidence in this case and which is marked Ex. 1. The matter arises in this way. One Akshoy Jana, the grandfather of defendant 2 executed a kabuliyab some time in 1877 in favour of his landlord, plaintiff 1's father, in respect of the lands in suit. From the kabuliyat itself, it is apparent that the lands in question had been held by Akshoy Jana as tenant under plaintiff l's father for some considerable time prior to 1877. The terms of the tenancy were in 1877 reduced into writing and the kabuliyat was in fact not the origin of the tenancy but a confirmatory document. It appears that defendant 2 was in 1327 B. S. in possession of the said lands. By a kabala executed sometime in that year, he conveyed the lands to defendant 1 and gave up possession. It is said that he removed his house and went to live elsewhere. The plaintiffs' contention in this suit is that; inasmuch as the lands formed a non-transferable occupancy holding, defendant 1 did not and could not acquire any rights whatsoever under the said kabala and that there having been an abandonment of the holding by the tenant, the plaintiffs are therefore entitled to recover khas possession. The Court of first instance examined the terms of the kabuliyat and came to the conclusion that the tenancy in question was of a permanent character and it accordingly dismissed the plaintiffs' suit. An appeal was taken by the plaintiffs to the learned Subordinate Judge of Midnapur who however dismissed the appeal. It is against the last mentioned decree that the present appeal has been brought.
2. The real question is, as indicated above, what is the meaning of the kabuliyat which is the governing document in this case. The kabuliyat is in Bengali and has been read out to us. The provisions therein, shortly stated, are as follows. The executant refers at the outset to the circumstance that he had been, previous to the date of the execution of the document, holding for some considerable time the lands, measuring about 14 1/2 cattas, under an oral demise and had been paying the rents regularly every year in respect thereof. Those lands had then included a bari (i.e., the tenants' residence) and it is stated that the tenant had been cultivating the lands adjoining thereto. The executant then goes on to state that he being desirous of having a registered patta and kabuliyat in respect of the said lands, the kabuliyat in question was being executed. A description of the premises demised then follows and it is apparent therefrom that the area was 14 1/2 cattas, that it included the said bari or residence with surrounding coconut, mango, and other trees and a tank. The executant then proceeds to state that in respect of the said lands a yearly fixed rent of Rs. 6 in company's coin had been agreed upon and that he was obtaining a potta or lease thika mokra. It is further stated that the executant would pay year by year into the landlord's office or sherista the said yearly rent according to certain instalments as specified in the said kabuliyat and would obtain duly signed receipts (dakhilas) from the landlord and that, if any payments were made by him without obtaining such receipts, no credit would be allowed to the tenant in respect of the same.
3. If there was default in payment of any one instalment the tenant undertook to pay interest thereon at the rate of half-anna per rupee per mensem. If in the matter of the payment of rent, default was made and difficulties were raised the landlord would be entitled, without obtaining an istafa or relinquishment from the tenant, to evict the tenant and to let out the lands by settling the same with fresh tenants and to take legal steps, for the recovery of the arrears of rent as might be due with interest thereon as also expenses incurred in Court against the tenant or, in the event of his death against his successor-in-intere3t and to that no objection by the tenant or his successor-in-interest would be valid. It is also stated in the kabuliyat that without the landlord's consent trees could not be cut down or new tanks dug and that the tenant would not be able to transfer the lands by sale or mortgage and that, if such sale or mortgage took place, the same would not be valid and binding on the landlord and that the landlord would be entitled in such event to recover damages with interest thereon for the tenant or his successor-in-interest and if any new taxes or charges on lands were imposed by the State, the same would have to be paid separately by the tenant. Lastly, there was a provision by which the tenant undertook to preserve the boundaries as of old.
4. These being the provisions in the kabuliyat, defendant 1 relies on the words 'thika mokra' and contends on the authority of the case of Resheecase Law v. Satish Chandra Pal A.I.R. 1922 Cal. 123 that the word 'thika' was used to indicate the creation of a tenancy and the word ' 'mokra' was in reality the word 'mokarari' indicating that the rent had been fixed in perpetuity and that on a true construction of the kabuliyat it should be held that the tenancy was of a permanent nature, the right of succession being expressly recognized. On the other hand it has been contended by the plaintiff that the Record of Rights does not show that defendant 2 had any permanent rights and that the words 'thika mokra' by themselves did not constitute a permanent tenancy : see Nabendra Kishore Boy v. Choudhury Mian : AIR1931Cal265 and further that the provisions in the kabuliyat taken as a whole did not indicate that the intention was to create a permanent tenancy. Now it seems to me that there is not and there cannot be much doubt as regards the meaning of the word 'thika.' 'Thika' in the context in which it appears clearly indicates the creation of a tenancy. Then comes the question as to what is the meaning of the word 'mokra'; does it mean mokrarari for the purpose of indicating that the rent was fixed in perpetuity or does it mean anything else having regard to the rest of the document In my view, in the context in which it appears and being not unmindful of the provisions in the kabuliyat taken as a whole, the import of this word is that the rent had bean fixed in perpetuity. It is not shown from the document as to what had been the rent prior to the date thereof, but there cannot be any doubt, in my opinion that the bargain was that the tenant was to pay a fixed rent of Rs. 6 per year from and after the doubt of the document. I am aware that the present rental is Rs. 6-3-0, but it is not explained how and when the rental in question came to be enhanced from Rs. 6 to Rs. 6-3-0 per year.
5. In any event, this slight increase in the rent would not by itself destroy the permanent character of the tenancy if as a matter of fact it was of that character; see Priya Nath Ghosh v. Surendra Nath A.I.R. 1922 Cal. 511. Let us then examine the other provisions in the kabuliyat. As far as I can make out, the clear intention of the parties was that the tenant was to be allowed to remain undisturbed in enjoyment of his bari or residence and of the lands in question on payment of the said fixed rent. It is also clear from the internal evidence afforded by the kabuliyat itself that a right of succession or heritability was being conferred on the lessee. The fact that there is provision for the eviction of the tenant on default of payment of rent cannot be held to militate against the permanent character of the tenancy, nor do, in my opinion, the other provisions in the lease relating to the cutting down of trees or digging of new tanks and the prohibition against sale or mortgage affect in any way the permanent character of the tenancy. It is well known that these last provisions were usually inserted in documents of this description as matters of routine and I am not prepared to attach any very great importance to these provisions on the facts of this ease in the absence of a clause for re entry. On all these considerations I am of opinion that the provisions in Ex. 1 are consistent with the idea that a permanent tenancy had been created thereby and that in the circumstances the execution of the kabala Ex. A and the transfer by defendant 2 did not give the plaintiffs any cause of action. I am therefore of opinion that the appeal fails and must be dismissed with costs.
6. I agree.