1. This appeal arises out of a suit for recovery of possession of the lands in dispute, on the allegation that the defendants were under raiyats holding under a lease which had expired. The main defence was that the defendants were not under-raiyats but raiyats and that the plaintiff himself was a tenure holder. The lower Appellate Court has found that the plaintiff was an occupaney raiyat and that the defendant, therefore, was an under raiyat.
2. The principal contention of the appellant before us is that the la*er Apsellate Court ought to have held that the interest of the plaintiff was that of a tenure-holder. It is pointed out that the area of the land exceeds 100 bighas and, therefore, the presumption arises that he was a tenure holder, that the kabuliyat itself states that the plaintiff had been holding 75 bighas of land from before and that by the kabuliyat another 50 bighas of land were taken settlement of, the two jamas being consolidated into one of 125 bighas.
3. Now in the kabuliyat under which the plaintiff holds the land 10 is stated:- 'if a tenant settles on any portion of the land mentioned in this kabuliyat, I shall surrender to the Sircar that portion according to the local custom. I shall get in exchange for the same lands of similar description from other places....' This indicates that there were no tenants settled on the land at the time the kabuliyat was exeouted: and not only so but it also shows that the land was not settled with the plaintiff for the purpose of settling tenants on the land- The other' terms of the lease rather go to support the view that the lessee was not a tenure-holder. For instance, the lessee was not allowed the right to out down any tree, nor had he any right to sell, to make a gift of, or transfer any portion of the land in any way. Of course, a tenure-holder also may enter into such a contract; but having regard to all the terms, we think that the Court below has rightly construed the document as showing that the interest created was that of a raiyat. Then again, the kabuliyat exeouted by the defendant on the 4th Assin 1311 states that he had been holding the land from 1304 as an ichhadhin uchhed loggya korfa praja. These words mean that he had been holding the land as an under raiyat, liaole to be ejected at the will of the landlord, and it is to be observed that this kubuliyat was for a term of nine years.
4. Having regard to all these circumstances, we are unable to hold that the finding of toe Court below, namely, that the interest of the plaintiff was that of a raiyat, is incorrect.
5. It is next contended that the Court below ought to have considered the question, who ther the defendant, even if he was an under-raiyat, had acquired a right of occupancy according to local custom. This question was not urged before the lower Appellate Court. It is necessary to go into questions of fact in order to decide this question. The lower Appellate Court was not asked to consider this question and we cannot allow such a question to be raised here.
6. The last contention is that the lower Appellate Court has not considered the question whether the defendant has been holding over, in which case he was entitled to a notice to quit.
7. The Court of first instance found that the defendant had failed to show that the plaintiff realised any rent from him after the expiration of the term of the lease, and the question does not appear to have been urged before the lower Appellate Court.
8. In these circumstancss, we think that the appeal must be dismissed with costs.