Lawrence Jenkins, C.J.
1. This second appeal arises out of a suit for khas possession. The plaintiffs rest their claim to possession on a mourasi mokarari lease of the 2nd October 1901. By that lease the defendant Company leased to Somaruddi Mollah '1601 one thousand six hundred and one standard bighas more or less of waste land in the Sunderbund Lot No. 130 belonging to the Company and known as Ram Chandra Khal.... ' the said piece or parcel of land being designated Somaruddi's chak and bounded as follows: 'West by Simultala khal belonging to the Company.' The other boundaries are given in the document, but we have no immediate concern with them.
2. By Clause 12 of the lease it is provided, 'that after the Bengali year 1307 the Company as well as the lessee shall have power to cause a survey of the land contained within the boundaries aforesaid, and if the quantity of land is found to be more than 1601 bighas the lessee shall be bound to pay for the excess land at the rate of 12 annas per bigha for ever, and if, on the other hand, the quantity of land be found to be less than 1601 bighas, the lessee shall have remission of rent for ever for the quantity found less at the rate mentioned above, namely, 12 annas per bighn.'
3. The map in the case depicts the land admittedly included in the lease, and thereon marked A, as well as the land in dispute, marked B, which lies to the west of it.
4. The western boundary mentioned in the lease, the Simultala khal, is also shown on the map, and it will be seen that it lies immediately to the west not of A but of B.
5. If, therefore, regard be had to the boundaries named in the document, B is included in the lease, and (his is what the Subordinate Judge decided. His decision has been reversed by the District Judge.
6. It has been conceded before us by Counsel for the defendant Company that as a pure matter of construction B would be included in the lease, having regard to the terms of the lease and the character of the property, and no argument has accordingly been addressed us on this point. But it is urged that there are findings of fact by the lower Appellate Court which preclude us from giving effect to the document according to its natural con-struction.
7. Now this must mean that the document does not give expression to the common agreement of the parties or that it is otherwise vitiated. To the lower Appellate Court it seemed that the question was 'whether the defendants intended to lease both A and B or only A to the plaintiffs.'
8. But this cannot be accepted as correct.
9. Either it must be shown that the document should be rectified, or that it is inoperative as a title to the land in suit. But rectification requires common mistake, and a failure to give correct expression to the common intention of the parties: but no such case was made or is there a finding of fact to that effect.
10. To render the lease otherwise inoperative as a basis of the plaintiff's title in the circumstances of this case fraud would have to be established, but no case of fraud has been raised or found. We, in second appeal, are not entitled to come to findings of fact and the case must, therefore, be determined on the construction of the lease. But, as 1 have already indicated, it is not disputed that as a pure matter of construction the Simultala khal as depicted on the map must be taken to be the western boundary and we hold this to be the true view. And if that be so, (he plaintiff's title to the land in suit is made out.
11. We must, therefore, reverse the decree of the lower Appellate Court and restore that of the first Court with costs throughout.
N. Chatterjea, J.
12. I agree.