1. The appellants before us were the plaintiffs in a suit brought for possession of a certain parcel of land on establishment of title. Their case was that one Lal Chand Mandal was a raiyat in respect of a holding of some 21 bighas held at a fixed rate of rent. Lal Chand, it is said, was succeeded by three persons each having 1/3 rd share in the holding. One of these three persons and the transferee or sub lessee of the other two sublet, it is said, 7 1/2 bighas to defendants Nos. 10 and 11 one Rai Charan and Sonatan, who executed in favour of the landlords what has been found to be a kabuliyat purporting to create a permanent tenancy. Against them it is said a decree for rent was obtained by their landlords, and in execution of that rent decree the plaintiffs Nos. 1 and 2 became the purchasers of the under tenancy. The sale was in 1909 and the plaintiffs after their purchase, we are informed, obtained symbolical possession through the Court. Then followed proceedings under Section 145, Criminal Procedure Code, with the result that the land in question was attached under the provisions of Section 146, Criminal Procedure Code. Hence this suit by the plaintiffs. The suit was decreed in the Court of first instance, but the decision of that Court was reversed by the Court of first appeal. The learned District Judge was of opinion that even if the landlords in execution of whose decree the plaintiffs had purchased were raiyats holding at fixed rates, even so by reason of the provisions of Section 85(2), the kabuliyat was not admissible in evidence. He was further of opinion that oral evidence in proof of the tenancy set up by the plaintiffs was inadmissible. On both these points We must hold that he has fallen into error.
2. It is not quite clear whether it was or was not disputed in the Courts below that Lal Chand was in fact a raiyat holding at fixed rates. If that was disputed the question must be investigated, and if it be found on investigation that he and his successors are in fact raiyats holding at fixed rates, it will then have to be held, on the authority of the case reported as Hari Mohon Pal v. Atul Krishna Bose 32 Ind Cas. 503 : 19 C.W.N. 1127, that the provisions of Section 85 do not apply in this case. If they are holders at fixed rates the provisions of Section 18 will become applicable and the kabuliyat in question must be admitted in evidence. Should it be found that these raiyats are not raiyats holding at fixed rates but are ordinary occupancy raiyats, even then on the authority of a number of cases decided in this Court, of which the cases reported as Manik Barai v. Bani Charan Mandal 10 Ind. Cas. 469 : 13 C.L.J. 649; Telam Pramanik v. Abu Shaikh 18 Ind. Cas. 791 :17 C.W.N. 468 (Second Appeal No. 2246 of 1912); Gonesh Mondol v. Thanda Namamndrani 38 Ind. Cas. 489 : 24 C.L.J. 539 and (Second Appeal No. 2237 of 1911); Sumitta Bewa v. Gopal Chandra Biswas of which a report is to be found at page 351 of Mr. 'S.C. Sen's work on the Bengal Tenancy Act, 3rd Edition, may be taken as instances, the kabuliyat failing, the tenancy may be proved aliunde, for instance by proof of possession, by proof of payment of rent or otherwise. In this particular case amongst other things it will be necessary to consider more particularly the effect of the purchase made by the plaintiffs on the 17th August 1909, in execution of what is said to be a rent decree obtained by the then landlord of the raiyati.
3. For these reasons we decree this appeal, set aside the decision of the District Judge and remand the case to him in order that it may be investigated and determined on the merits and disposed of in accordance with law.
4. Costs of this hearing will he costs in the case.