Nasim Ali, J.
1. This is a defendant's appeal in an action for ejectment under Section 44, Clause (c) of the Bengal Tenancy Act-The Courts below have decreed the suit. The facts of the case so far as they are relevant for the purposes of the present appeal and which are not in dispute now are as follows:
The plaintiff is the landlord of the holding. The defendant came upon the land as a non-occupancy raiyat after executing a kabuliyat in plaintiff's favour on Chaitra 18, 1325 B.S. The material portion of the kabuliyat is as follows:I will be your tenant in respect of 15 gds. of land at an annual rent of Rs. 15 for a period of five years. I will pay the stipulated rent to you every year and take dakhilas signed by you. Without such a dakhila I will not be entitled to claim exemption from payment of rent. After the expiration of the term I will take a fresh settlement. I will preserve the boundary of the land. If the area of the land be found to be more, I will pay additional rent and if it be found less I will get proportionate abatement of rent. At the end of the term if I cannot make a fresh settlement, I will continue to be tenant under you as before and pay the aforesaid rent as the rent settled.
2. After the expiration of five years from the date of the kabuliyat the tenant did not enter into a fresh engagement. He was, however, dispossessed. He filed a suit tinder Section 9 of the Specific Relief Act but failed. He thereafter instituted a regular suit for possession impleading the landlord as a defendant on the strength of the kabuliyat in the year 1927 and succeeded in recovering possession. On September 5, 1929, i. e., after the expiration of ten years from the date of the Kabuliyat the landlord instituted the present suit for ejectment on the ground that the term of the lease expired at the end of 1335 B.S.
3. It is conceded by the learned Advocate for the plaintiff-respondent that if the terms of the kabuliyat relating to the tenant's right after the expiration of five years from the date of the kabuliyat indicate simply a covenant for renewal for a further period and not a present demise for a further term, the provisions of Section 44, Clause (c), would not be attracted and plaintiff must fail. It is also conceded by the learned Advocate that if the demise be for an indefinite period after the first five years, plaintiff would also fail. The learned Advocate for the appellant also concedes that if these terms created in substance a present demise for 10 years only, plaintiff's suit must succeed.
4. The only point that emerges for consideration, therefore, is whether by the kabuliyat there was a demise for ten years only. In one portion of the lease no doubt it is provided that the raiyat would be in occupation for a period of five years on a rent of Rs. 15 and that he will make a new arrangement with the landlord at the end of the said term. But in another clause it is stated that if no fresh arrangement is made, the raiyat will continue in occupation as a tenant on the same rent as before. This clause, therefore, is not a mere covenant for renewal. In the absence of any new arrangement the old arrangement will continue. This clause in my opinion indicates a present demise for a further period. The learned Advocate for the appellant, however, contends that even if this clause implies a present demise, the words 'as before' simply imply that the tenant would continue to hold as a tenant and that the words do not imply that the term would be as before, i.e., for five years. In other words the contention of the learned Advocate is that the words 'as before' do not define the period of occupation after the first five years, and consequently the lease is to be treated as a lease for five years and after that for an indefinite period. The two essential terms in a lease for cultivation are the rent and the period. The clause in question specified the rent and the words 'As before' must, therefore, have reference to the duration of the lease. It was not disputed that if the tenant wanted to avail himself of the covenant for renewal, the lease would have been renewed only for a further period of five years. The intention of the parties must, therefore, have been that if the lease be not renewed on the basis of the renewal clause, the parties would be in the same position as if the lease would be a lease for a further period of five, years, in other words the lease would be a lease for ten years.
5. It could never have been the intention of the parties that if there be no new arrangement the tenant would be in a more advantageous position. The learned Advocate for the appellant relied upon two decisions of this Court reported in Basanti Charan Sinha v. Rajani Mohan Chatterji 49 C 928 : 86 Ind. Cas. 227 : 26 CWN 711 : AIR 1922 Cal. 514 : 39 CLJ 85, and Nibaran Chandra Datta v. Amarchandra Das : AIR1933Cal419 . The first case simply lays down that the mere fact that there is an option for renewal in a lease for a further period after the expiration of the first period would not make it a continuous lease for the first period and the further period. In the present case in addition to the covenant for renewal there was a demise for a further period after the expiration of the first period of five years if the lease were not renewed on the basis of the covenant for renewal. In the second case it was simply pointed out that a mere fact that it was optional with the lessee to ask for a fresh lease if he desired to hold on and if he did so apply, the lessor would be bound to grant, it would not effect a present demise. In this case on a consideration of the terms of the lease it was held that there was only a covenant for renewal and there was no present demise of a further period after the expiration of the first period. In the present case, however, in addition to the clause for renewal, there is a further clause which, as I have already observed, indicates a present demise for a further period after the original term has expired.
6. The learned Advocate for the respondent cited the case of Abdul Karim v. Abdul Rahman 15 CLJ 672 : 13 Ind. Cas. 364, in support of his contention that if there is a demise for a fixed period by a lease and if there be a further stipulation in the lease that the conditions of the lease would continue in force till a fresh settlement is made, the lease would not be terminated at the end of the first period but would continue after that period had expired. The learned Advocate for the appellant, however, contended that in that case there was an express clause in one portion of the lease that the tenant would never be ejected. But this clause was taken to effect a present permanent demise after the first period. This case, therefore, supports the view that the mere fact that a fixed period is mentioned in lease does not necessarily confine the term of that lease to that period only if there are other clauses in the lease indicating the continuance of the lease for a further period after the expiration of the first term. In each case the Court will have to determine the intention of the parties taking all the clauses in the document into consideration. As I have already pointed out, the intention of the parties as evidenced by the lease in question was that if no fresh settlement was made, the lease would continue for five years more after the expiration of the first live years.
7. The Courts below were, therefore, right in decreeing the plaintiff's suit. The appeal, therefore, fails and is dismissed with costs.
8. Leave to appeal under Section 15 of the Letters Patent has been asked for and is refused.