1. The question raised in this appeal is whether the plaintiff is entitled to recover the value of half the props of the land in suit or only a money rent of Rs. 40 yearly from the defendant under a barga kabuliyat. The kabuliyat provides that the defendant shall, carrying on cultivation, deliver every year 'at the house of the plaintiff at the proper time a moiety share after measurement of whatever crops are grown' on the land ; and that if the defendant does not deliver the same, then the plaintiff will be 'competent to realise a sum of Rs. 40 on account of value thereof by filing law suits.' It further provides: 'if through default of carrying on the tillage and cultivation ourselves or of maintenance and preservation thereof good crops are not grown, we shall deliver without objection such quantity of crops as would be in proportion to the output of the neighbouring lands. And if you so desire you shall be competent to wrest away the entire or portions of the land (from us) and let out the same to others.' We think that the contract was to pay half the crops grown on the land, and not a sum of Rs. 40 a year. We have been referred to a number of cases, but none of them had to deal with a barga contract. In the eases cited before us, the quantity of paddy was fixed and a certain sum was agreed upon to be paid on default of payment of the produce rant, and it was held in some of the cases that upon the failure of the defendant to deliver the paddy, the landlord was entitled to realise only the amount stated in the lease as its price. Here the land was cultivated under a barga contract and the quantity of props deliverable would vary in different years according to the props raised. Morever, the kabuliyat provides for payment of 'such quantity of crops as would be in proportion to the output of the neighbouring lands,' if good crops are not grown owing to the failure of the defendant in properly carrying on the cultivation. We may point out that the defendant, while denying the kabuliyat, pleaded that, in respect of lands cultivated under, the barga system in the neighborhood, the practice was to pay only a third share of jute and other fibre crops and a moiety share of other crops only. That shows how the barga system was understood by the defendants themselves.
2. There is no doubt that there was a stipulation that the plaintiff would be competent to realise Rs. 40 in case of non-payment of half the props. But the subsequent clause provides for the payment of paddy in proportion to the produce of neighbouring lands if good crops are not grown owing to the failure of the defendants in properly carrying on the cultivation, and the construction that the parties intended the payment of a fixed sum of money is not consistent with the above clause or the other provisions of the document mentioned above. The question is one of construction of the document; and having regard to the nature of the barga contract and all the terms of the document, we are of opinion that the plaintiff is entitled to recover the value of half the props raised on the land. A similar view was taken in an unreported case Basiruddi Chowdhuri v. Afsarannessa Bibi decided on 27th March 1916 by one of the members of this Bench.
3. The result is that the decree of the lower Appellate Court is set aside and the case sent back to that Court in order that the value of half the crops may be determined and a decree passed accordingly. Costs of this appeal will abide the result.