1. We are unable to dispose of this appeal upon the Judgment as it now stands. Accepting the finding that the tenancy was not for agricultural purposes, we must know whether the tenancy as described in the plaint was created before or after the Transfer of Property Act was passed. It is true that the Judge says that the holding was created some time before the Transfer of Property Act was passed, but it is argued that this refers to the original tenancy and that the plaintiffs case is that a new tenancy was created by the kabuliat mentioned in the second paragraph of the plaint. This is denied and it must, therefore, be clearly found whether the defendants are holding under the original tenancy of a date prior to the Transfer of Property Act or under a new tenancy created after the Act.
2. The contention of the defendant in his written statement was that it was an old tenancy which dates back to the days of the Permanent Settlement, and his argument before us has been that the second paragraph of the plaint indicates that the tenancy in respect of which the suit is brought, was created by a kabuliyat dated the 16th March 1314 B.S. That is after the passing of the Transfer of Property Act.
3. On the other hand, the learned Vakil for the plaintiffs-appellants says that it is not meant by that allegation to say that the tenancy was created by that kabuliyat. This is a matter in which, we think, an enquiry should be made. If the tenancy, as described in the plaint, was created before the Transfer of Property Act, it would not be transferable unless the custom of transferability is proved. On the other hand, if it was created after the Transfer of Property Act, then the tenancy is transferable.
4. Further it has been alleged by the defendant that he holds the land as mokurrari. As regards this the Subordinate Judge says: 'It is not necessary to find now whether the holding is permanent or at fixed rent.' It is necessary, however, to determine whether the tenancy is a kaemi mokurrari, because if it were kaemi mokurrari, then the tenancy would be transferable. If, on the other hand, it is not kaemi mokurrari, then the other matters to which we have alluded will have to be considered.
5. The case must, therefore, go back to the Subordinate Judge for a determination upon the issues set out in our judgment.
6. The appeal will remain on the file of this Court and on arrival of the findings from the Court below, it will again be placed on board for final disposal.