Nasim Ali, J.
1. This appeal arisen out of a suit for a declaration of the plaintiff's right on certain char lands which are described in schedule of the plaint. The plaintiff's case briefly stated is as follows: Plot 1 of the plaint appertains to Mouza Gohagram of which the defendants are the talukdars. Plot 2 appertains to Mouza Sansar and the defendants are lessees in respect of the said plot under the proprietors of Mouza Sansar. One Dhan Krishna Jas was in possession of these two plots of lands as, a permanent raiyat at a yearly rental of Rs. 20 and that while he was in possession of these lands he used to grow Paddy on portions of them and take the reeds kasia grass and other self-sown plants and trees on these lands. Dhan Krishna died leaving his son Hanseswer as his sole heir. After Hanseswer's death his widow Aghore Kumari inherited this jama and after her death Bhutnath and Provakar, the reversionary heirs of Hanseswer, inherited this property and sold them to the plaintiff on 16th Kartik 1330 B.S. The plaintiff is in possession of the lands but the defendants are trying to take kabuliyats from the tenants who have been inducted into the lands by the plaintiff. The plaintiff is therefore entitled to have his kayami mokrari rayati right declared to this property.
2. Defendant 1 only contested the suit. Her defence in substance is that plot 2 is in khas possession of the proprietor of Mouza Sansar and that she was only a lessee in respect of the said plot having a forest right only on the basis of a lease dated 1253 B.S. She further states that she as well as her co-sharer, husband of defendant 2, are in khas possession of plot 1. and that the plaintiff's predecessor Dhan Krishna had only Bankar right in plot 2. She denies the right of Dhan Krishna, or his successor in interest or of plaintiff to the soil of the lands. Objections were also taken by her to the maintainability of the suit under Section 111, Ben. Ten. Act, and Section 42, Specific Relief Act. Issues were settled in the suit on 19th December 1929. On 18th November 1930, the plaintiff put in an application for amending the plaint by striking out his prayer for declaration of his mokrari kayami rayati right to the lands and by inserting a prayer for declaring his tenancy right in the lands in order to meet the objection of the defendants that the suit was not maintainable in view of the provisions of Section 111, Ben. Ten. Act. This prayer was allowed by the learned Munsif and the only point for determination before the trial Court was whether the plaintiff's vendor was a tenant or had only bankar right in the disputed lands. The learned Munsif on a consideration of the entire evidence gave judgment in favour of the defendant and dismissed the plaintiff's suit. An appeal was thereafter taken by the plaintiff to the lower appellate Court and the learned Judge has reversed, the decision of the trial Court and has decreed the plaintiff's suit. Hence the present second appeal by defendant 1.
3. The first point urged by the learned advocate for the appellant is that the judgment of the lower appellate Court is not a proper judgment of reversal. This contention must prevail. It appears that as regards plot 2, there was a definite finding by the trial Court that the Meas of Sansar are in possession of jack-fruit garden and cultivable lands in plot 2, and that the plaintiff made no attempt to show that his predecessors in-interest were ever in possession of the lands in the said plot. The learned Judge further does not appear to have considered properly the finding of the trial Court as regards the nature of possession exercised by the plaintiff, the defendant and the superior Malik. Again it appears that the plaintiff relied upon a decree in a rent suit which was obtained at a time when plaintiff was the gomastha of defendant 1. The trial Court found this decree to be a fraudulent decree and one of the reasons given by the trial Court is that in that suit part of the rent which was previously paid was also claimed. In reversing the finding of the trial Court on this point the learned Judge has not taken into consideration this fact at all. I am clearly therefore of opinion that there had not been a proper hearing of the appeal by the lower appellate Court.
4. The next point urged by the learned advocate for the appellant is that the findings of the lower appellate Court are not sufficient to give the plaintiff a decree. It is urged by the learned advocate that even if the plaintiff's vendor had a tenancy right, unless the plaintiff succeeds in showing that such a tenancy was transferable without the consent of the landlord, the plaintiff is not entitled to get a declaration of his right to the property as against the defendant who is admittedly the landlord under whom the plaintiff claims the tenancy right. I have already stated that in the plaint originally there was a prayer for a declaration that the plaintiff has got kayami mokarari rayati right. In order to avoid the objection under Section 111, Ben. Ten. Act, this prayer was expunged. In view of the fact that the plaintiff's case is that he is a purchaser of some tenancy right, this suit cannot be disposed of unless the nature of that tenancy is determined. This aspect of the matter was overlooked by the trial Court and was also overlooked by the learned Judge. In order to dispose of this suit finally it is necessary that the question of the nature of the tenancy of Dhan Krishna Jas must be decided in this suit.
5. The result therefore is that this appeal is allowed, the judgment and decree of the lower appellate Court are set aside and the case is sent back to the lower appellate Court for re-hearing of the appeal. The learned Judge is directed (1) to decide the question whether the plaintiff's predecessor-in-interest Dhan Krishna Jas was a tenant or he had merely Bankar right to the disputed lands on the evidence which is already on the record, (2) to decide the question whether Dhan Krishna had a transferable right in the disputed lands, that is, a right which was transferable without the consent of the landlords, after admitting in evidence the Record-of-Rights which has been published, and after taking such evidence as the parties may desire to adduce on the point; (3) to come to a finding on the question of maintainability of the suit under Section 42, Specific Relief Act. As the plaintiff amended the plaint by striking out the prayer for declaration of his alleged kayami mokrari right to the disputed lands, he must pay costs to defendant 1 incurred by her in the lower appellate Court as well as in this Court within a fortnight from the date of the arrival of the record in the lower appellate Court; in default the plaintiff will not be entitled to adduce any evidence and the defendant will be entitled to realise the same by execution. Further costs will abide the result. The appellant is allowed to take back the copies of the Record-of-Rights which were filed by her in this Court.
6. I agree.