R.C. Mitter, J.
1. The plaintiffs appeal from the judgment and decree of the Subordinate Judge, 3rd Court, Mymensingh by which their suit for ejectment has been dismissed. It appears that three plots of land constituted a holding formerly held by two persons, Raghunath Garo and Labanga Garani under the plaintiffs at the rate of Rs. 30-11-9 per year, The area of the three plots is 7.18 acres. It is admitted that Raghunath Garu and Labanga Garani had occupancy rights in these three plots of land and that there is no custom of transferability of occupancy holdings in the locality. On 30th Sravan 1325 B.S. Raghunath and Labanga sold the entire holding to the defendant but the plaintiffs refused to recognise this transfer. The defendant remained on the land from the date of his purchase till the year 1334 B.S., the landlord refusing to do anything with him. In Baisakh 1335 B.S., the defendant executed a kabuliat in favour of the plaintiffs in respect of a portion of the lands of the holding of Raghunath and Labanga. The area in respect of which the kabuliat was taken is 4.31 acres and the rent that is reserved is Rs. 23-10-3. This kabuliat was for a term of three years and in Clause 11 of the same it is provided that on the expiry of the term of three years the tenant would be allowed to remain on the land for another period of three years if he chose to accept the rent the landlords then demanded. On the expiry of this kabuliat the landlords instituted the present suit asking the defendant to vacate under Section 44, Clause (c) Ben. Ten. Act, that is to say, the plaintiffs have taken the position that the defendant is a non-occupancy raiyat admitted to occupation under a registered kabuliat of Baisak 1335 and as his lease had expired he was not entitled to remain on the land. The defence as contained in the written statement raised one point and one point only, namely, that he the defendant, was then an occupancy raiyat, that is to say, the contention seems to be this that the defendant's occupation as raiyat must be taken from the date of his purchase in 1325 to the date of the suit which was instituted on 14th March 1931, corresponding to Chait 1337. Secondly, his contention rests on the ground that the kabuliat of the year 1335 is really the recognition of the transfer to him by Raghunath and Labanga and in law therefore the old occupancy holding must be taken to continue in his ownership and possession by reason of the landlord's recognition.
2. The Court of first instance gave effect to these two contentions and dismissed the suit of the plaintiffs on the footing that the defendant was not a non-occupancy raiyat but had acquired a right of occupancy of the land. On appeal, the learned Subordinate Judge disagreed with the learned Munsif on these points. He held that the occupation of the defendant from the date of his purchase till the end of the year 1334 was that of a trespasser and the document of 2nd Baisakh 1335 above referred to created a new tenancy in his favour. He accordingly held that the plaintiffs would prima facie be entitled to get possession from the defendant but he dismissed the plaintiff's suit on a ground which he admits was not taken by the defendant either in his written statement or in the lower appellate Court. He said that Clause 11 of the kabuliat of the year 1335 conferred an option of renewal for a period of three years on the defendant. The defendant therefore according to the Subordinate Judge is entitled to fall back upon this clause and say that he has exercised the option. By reason of this clause, says the learned Subordinate Judge, the defendant would be entitled to remain on the land up to the year 1341 and the suit which was instituted before the year 1341 was premature. In my view, the learned Subordinate Judge was not right in making a new case for the defendant in appeal. A determination of the questions that would arise on Clause 11 of the kabuliat would have entitled an investigation into facts, one of them being whether the landlord had offered a fresh tenancy to the defendant and whether the defendant had refused it or not had this defence been taken in the written statement. I am clearly of opinion that the learned Subordinate Judge was not right in dismissing the plaintiffs' suit on a plea which was never taken by the defendant at a proper stage of the suit.
3. Mr. Roy who appears on behalf of the defendant-respondent, however, contends that the conclusion of the learned Subordinate Judge that the tenancy for the first time was created in favour of the defendant in the year 1334 is wrong. He contends that the kabuliat of that year which is Ex. 1 is merely a recognition of the transfer to the defendant by the old tenants effected in the year 1325 and if this be so the defendant could acquire a right of occupation by reason of Section 20, Ben. Ten. Act; secondly he says that the old occupancy holding would be still subsisting in the hands of the defendant and Section 44 (c) would not apply because the defendant would not be taken to be admitted into occupation under a registered document. All these contentions raised by Mr. Roy depend upon one cardinal fact, and that is, what is the nature and effect of Ex. 1. I have one through Ex. 1. There is no recital in that document of the purchase of the defendant from Raghunath and Labanga, The recital indicates as if a new settlement is being conferred and there are it least three circumstances which would tell against the contention that the kabuliat was only a confirmatory kabuliat in recognition of the transfer to the defendant by the old tenants. First of all, all the lands of the old tenancy are not included in this document but only some and the rent which is fixed for the lands is quite out of proportion to the old rent. It indicates an enhancement of more than 2 annas in the rupee which the landlord would have been entitled to get at the most if the old tenancy continued. Secondly, the period of three years fixed by Ex. 1 coupled with the option of the tenant to remain for another period of three years only, in case he complied with certain demands of the landlord, is quite inconsistent with the continuance of the old occupancy holding of the Garoes.
4. Thirdly, the clause in the lease that on transfer by the tenant eitheir by way of sale or usufructuary mortgage of the whole or part of the demised land or on building substantial structures on the land there would be an end to the tenancy and the landlord would be entitled co re-enter even within the period of three years is also against the contentions of the respondent. Having regard to these terms of the documents, I am of opinion that a new lease was created in favour of the defendant by Ex. 1 and the judgment of the learned Subordinate Judge on this part of the case is correct.
5. I accordingly set aside the decree of the learned Subordinate Judge inasmuch as he had no business to make a new case for the defendant and direct that the plaintiffs' suit for khas possession be decreed. The result is that the appeal is allowed and the plaintiffs' suit for khas possession is decreed with costs throughout.