1. The suit in which this appeal has arisen was brought by the plaintiff, now appellant, to eject the defendants on the allegation that defendants are under-raiyats on whom notice to quit had been served under Section 49(b), Ben. Ten. Act and whose tenancy had been determined by such notice. The defence of the defendants, now respondents, is (i) that notice had not been properly served on the defendants; (ii) that they have acquired a right of occupancy by custom and are not liable to be ejected.
2. The Munsif held after a careful examination of the evidence that the service of notice to quit which was served on the defendants through Court in April 1920, had been satisfactorily established and points out that one of the defendants, Muhammad Ali does not come forward to depose that no notice was served on him. The Munsif refers to the entry in the Record-of-Rights in favour of the defendant to the effect that though under-raiyats the defendants have acquired a right of occupancy and states that the entry is proved to be wrong the moment it is shown that defendants are under-raiyats, and that the defendants have failed to establish that they have acquired a right of occupancy by custom and that on the other hand plaintiff has proved that there is no such custom.
3. The Munsif rested his decision on the further ground that plaintiffs brought a suit for ejectment against the defendants under Section 66, Ben. Ten. Act, and defendants, although appearing at the earlier stages of the suit, did not ultimately contest it with the result that an ex parte decree was passed. It is said that if the defendants were under raiyats with rights of occupancy the decree for ejectment could not have been passed and the decree in the said suit (No. 1826 of 1919) operates as res judicata on the question of the status of the defendants. The Munsif accordingly decreed plaintiff's suit.
4. An appeal was taken to the Court of the Subordinate Judge of Noakhali who reversed the decision of the Munsif and dismissed plaintiff's suit. The Subordinate Judge rested his decision on three grounds : (i) that the evidence of the service of notice to quit is meagre and unsatisfactory; (ii) that the presumption arising from the entry in the Record-of-rights has not been rebutted ; (iii) that it cannot be seriously contended that all the elements which go to constitute proof of custom have not been mentioned even by the few witnesses examined. It is argued for the plaintiff, now appellant in second appeal, that the judgment of the lower appellate Court is not a proper judgment and there had been a defect of procedure in the trial of the appeal which has affected the merits of the case so as to call for the interference of this Court is second appeal.
5. I think the contention of the appellant is well founded and must prevail. The lower appellate Court deals with the question of service of notice rather perfunctorily. He says ' the proof of service of notice is admittedly not quite satisfactory.' The Munsif discusses in detail the evidence to show that the notice was served through Court and points out that no reason is suggested why the Court peon with six witnesses to the service should sign a false report. In my opinion, there has not been a proper consideration of the evidence on the question of service of notice which must be considered again. The learned advocate for the respondents frankly concedes that the judgment of the Subordinate Judge on this point is not as satisfactory as it should be.
6. The lower appellate Court admitted at the appellate stage a certified copy o a kabuliyat, which does not contain any clause entitling the plaintiff to eject the defendant. It is a kabuliyat which also contains the term that it is a (san basan) kabuliyat, i.e., it is a tenancy from year to year. The Record-of-Rights was based on this kabuliyat. If iii is a kabuliyat which creates a permanent under-raiyati tenancy it cannot be admitted in evidence as it contravenes the provisions of Section 85, Ben. Ten. Act and cannot create a valid contract between the parties and the presumption arising from the entry in the Record-of-Rights is rebutted as soon as it is shown that the entry was based solely on a document which did not create a valid contract between the parties: see Bagha v. Ram Lakhan  27 C.L.J. 107. The Subordinate Judge points out that under the kabuliyat the defendant had been given the right to alienate the land under certain conditions and there are no words conferring on the plaintiff the right to eject the defendant. If the lease is regarded as conferring permanent rights on the under-raiyat then it cannot be acted on as being in contravention of Section 85. If on the other hand the lease is taken as a lease from year to year (san basan) the under-raiyat is liable to be ejected upon notice under Section 49 : see Chandi Charan v. Somla Bibi  28 C.L.J. 91.
7. The Record-of-Rights was based on this kabuliyat which (i) treating it as creating a permanent lease offends against Section 85 and must be regarded as void (ii) treating it as year to year lease does not protect the defendant from ejectment, Chandi Charan v. Somla Bibi  28 C.L.J. 91 : (See observations of Mookerjee, J.). Whatever construction is put it does not justify the entry in the Record-of-Rights that defendants have acquired occupancy right. The Record-of-Rights based as it is on the kabuliyat is not correct for in either view of its terms the kabuliyat cannot create a right of occupancy in the under-raiyat. The Record-of-Rights does not state that the defendants have acquired a right of occupancy by custom.
8. In these circumstances with regard to this point also the appeal must be reheard and the lower appellate Court would consider the question whether the defendants have on the evidence established that there is a custom in the locality under which under-raiyats acquire a right of occupancy. If no such custom is established plaintiffs will be entitled to a decree in ejectment provided the Court holds in his favour on the question of service of notice to quit. The judgment and decree of the lower appellate Court is set aside and the case is sent back to it in order that it may rehear the appeal in the light of the observations I have made. The costs of the appeal will abide the result.