1. This appeal arises out of a suit for recovery of khas possession. The first Court dismissed the suit, holding that the defendant was an occupancy raiyat of the land and could not be ejected. The lower Appellate Court held that the defendant's position was that of a labourer or servant under the plaintiff and decreed the suit. The learned Subordinate Judge in deciding the appeal also held that if it could be found that the defendant came into possession of the land as a tenant, he was holding the land as a raiyat and was, therefore, not liable to be evicted from the land. The defendant in this case is admittedly a settled raiyat in the village and consequently, as held by the lower Courts, if he came into possession of the land as a tenant he at once acquired the right of occupancy and was not liable to ejectment. The document under which the plaintiff came into possession is a registered kabuliyat in the following terms:
2. The worthy of remembrances Srijukta Brahmamayi Barmani, wife of Ram Bux Roy, inhabitant of Balla, Thana and Sub-Registry Monohardi, District Dacca, by caste Kshetria, occupation Talukdari and Mahajani.
3. I, Sheikh Mansur, son of late Sheikh Sudan, by race Musulman, occupation cultivation, inhabitant of Majidia, Thana and Sub Registry Monohardi, District Dacca, execute this Burga kabuliyat for a term, of eleven months to the following effect:
4. That you are the superior malik of the land described in the schedule below, situate in Mouza Bir Majdia, generally known as Mouza Majidia, being the Taluk Sahebram Rai Ranjit, appertaining to the Zamindari Hissya 9 annas of Pargana Bhowal, under Police Station and Sub-Registry Monohardi, District Dacca, and you, having purchased this land together with other lands at a public auction sale and held in Execution Case No. 116 of 1914 of the fourth Court of Munsif at Narayangange and having taken possession thereof by taking sale certificate, have been the malik thereof. As I applied to take Burga settlement of the said land in half bhag, you have granted my application and have agreed to grant me Burga settlement of the said land for a term of elevan months commencing from the month of Baisakh and ending in the month of Falgun this year. I, therfore, execute this Burga kabuliyat for a term of eleven months and promise hereby that, keeping the metes and boundaries of the under-described land intact, I will with due cure plant, sow crops and reap them and whatever crops I will grow, I will take to your house or in the house of any other parson as you may order, and after threshing the same L will take the half share thereof to your house and give it to you to your satisfaction and I shall take the remaining half share of the crops as my remuneration. I will give the seeds that may be required for sowing the land and I will give you a half share of the Kuta to your satisfaction. I shall take advice from you as to which crop should be sown in which season, and sow crops accordingly. I will give up the land without notice, on the expiry of the term. I shall not be at liberty to raise any objection on the ground of cultivation or possession, and if I raise any, it will be disallowed by Court. Further if I do not sow or reap crops in proper time and if you suffer any loss for any act done by me, then I shall pay to you Rs. 48 on account of compensation, and if I do not do so, then you shall be competent to institute suit and realize the said amount by taking out execution of the decree (passed in that suit). To this effect I execute this Burga kabuliyat for a term of eleven months, out of my own will and in sound state of my senses.
5. The learned Subordinate Judge has held on this agreement that the defendant acquired no tenancy right in the land. I am unable to agree with him. He cites in support of his decision the case of Kale Mandal v. Ahadali Molla 6 Ind. Cas. 594; 14 C. W. N. 629. Bat in that case, though it was held that a suit against a Burgadar for recovery of the price of the produce was maintainable in a Small Cause Court, it threw vary little light on the circumstaness which distinguish a Burgadar who is a tenant and a Burgadar who is a servant. In tint case the terms of the contract were not proved and the finding that the Burgadar was a servant was baaed to some extent on the custom of the Patna District. My attention has been drawn to the decision of this Court in the case of Shaikh Pokan v. Rajani Kamal Chakravarty 50 Ind. Cas. 285; 23 C. W. N. 614., where it was held that the kabuliyat which was set out at length in the judgment was a contract for service and was not a document creating a tenancy. Bit there is a marked difference between the contract in that case and in the present case. Here there is no reference to agricultural labour and by the document, the settlement of the land for a term was created. In the, case cited, the grantor of the kabuliyat had a right to decide where crops were to be grown and the grantee was declared unable to grow any crops according to his own will. Here the kabuliyat only provides that the executant thereof shall take advice, which is a very different matter from taking an order. Finally, there is a provision to give up the land without notice on the expiry of the term. On the document itself, I would hold that the contract was one of letting out the land for cultivation and was not a mere contract for service. On this construction of the document and the findings of the lower Courts the plaintiff could have no right to eject the defendant.
6. The result, therefore, is that this appeal is decreed, the judgment and the decree of the lower Appellate Court are set aside and those of the Munsif dismissing the suit restored.
7. The appellant is entitled to his costs in this Court and in the lower Appellate Court.