1. This is an appeal by the plaintiff against the dismissal of his suit which is for recovery of possession from the defendant after notice of annulment under Section 167, Ban. Ten. Act. The tenancy in question exceeds 100 bighas in area and it was recorded in the Record-of-Rights as a tenure but the first Court found on a reading of the kabuliat, in which the terms on which the lands were held are recorded that the tenancy that was brought to sale was a rayati tenancy. The learned Additional District Judge reversed this finding relying on the Record-of-Rights and on the presumption under Section 5, Ban Ten. Act that tenancies exceeding 100 bighas in area are tenures. The learned Additional District Judge was in error in refusing to treat the kabuliat as conclusive of the nature of the tenancy. He says that the lease is a confirmatory one. This is perfectly immaterial. Even if it is a confirmatory lease, that fact would not assist the respondent because the tenancy referred to in the kabuliat is a rayati tenancy and if the lease be a confirmatory lease it would follow that the tenancy that previously existed was also a rayati tenancy. However, that is beside the point. It is also open to the parties to enter into a fresh contract ; and this is a contract embodied in the registered deed. It expressly states that the tenancy is a rayati tenancy. It prohibits the sale of the tenancy by the tenants. It prohibits the erection of permanent structures, the digging of tank or ditches and the cutting of trees, and it further prohibits the tenants from sub-letting the lands permanently. All these incidents are incidents of rayati holdings and not of tenures. The kabuliat, as it expressly states, and as its terms prove, was for a rayati tenancy. Therefore, the purchaser of that tenancy at a rent execution sale under the provisions of Chap. 14, Ben. Ten. Act, was entitled to annul the tenancy of the undertenants.
2. The appeal, therefore, succeeds. The judgment and decree of the Court of appeal below are set aside and those of the Munsif are restored with costs in this Court and in the Court of appeal below.