Judgement

LORD DUNEDIN. This is an appeal from the judgment of the High Court at Calcutta affirming a judgment of the Subordinate Judge by which he decreed khas possession of certain reformed and accreted chur lands in favour of the plaintiff. The plaintiff is a zamindar and the lands in question are admittedly within his zamindari. The existent lease of the lands having, as he contended, expired, he gave the necessary notice to terminate the tenancy. The appellants plead that they are occupancy tenants and as such entitled to maintain possession under the terms of Act X. of 1859 (the Bengal Rent Act).

The appellants are the successors by transfer to the firm of Jardine, Skinner & Co., who were prior to 1864 in occupancy of the lands, the zamindar at that time being the respondents father, to whom he has succeeded. In that year the respondents father raised an action against Jardine, Skinner & Co., claiming the lands in question. That suit was compromised. At the same time Jardine, Skinner & Co. took a lease of the whole taluk within which the lands were situated. Patta and kabuliyat were executed.

The kabuliyat executed by the manager of Jardine, Skinner & Co. bears as follows "I having applied for a temporary ijara settlement of all the mahals, etc., appertaining to your zamindari and putni taluk .... you grant me an ijara settlement and ijara pottah for a term of eight years from 1271 to 1278 B.S., fixing Rs. 7500 as the annual rent, exclusive of collection charges." The kabuliyat then proceeds to incorporate the settlement as follows " You have instituted against me a suit, No. 19 of 1864, in the Sudder Amin Adalat of the district of Murshidabad, claiming a 4 annas 13 gundahs 1 kara 1 krant share of the reformed and accreted chur lands of Bajupur, Krishnapur, Dinurpara alias Manick Chuck, appertaining to taraf Bangsibadanpur, and a 7 annas share of the reformed and accreted chur land of Ashariadaha appertaining to pergunnah Kazirhatta. Creating a jote of the same and fixing Rs. 1300 as its yearly rent, you include the same also in the aforesaid ijara rent. In respect of the same, the stipulation is that after the expiry of the term of this ijara, pottah and kabuliyat will be given and taken, settling the rent of the aforesaid chur land in your nij share, at a fair rate, according to the proper rate prevailing in the villages, either amicably and (or) by suit; that until you settle the rent in the aforesaid method, according to the proper rate prevailing in the villages, I will pay up to that time the aforesaid yearly rent of Rs. 1300 in twelve monthly instalments as per kistbandi, and in default of any kist, I will pay interest at Re. 1 per cent, per month, and that if after the fair rent is settled according to the proper rate prevailing in the villages T refuse to pay that rent, then you will bring the lands under your khas possession by evicting me therefrom; and I shall not be able to make any objection to the same."

The case accordingly depends upon the proper interpretation of this clause in the ijara. The learned judges of the appellate Court have held that the clause is practically indistinguishable from the clause which was the subject of decision by this Board in the case of Jardine, Skinner & Co. v. Surut Soondari Debi. (L. R. 5 I.A. 160.) There, as here, there was a lease of other lands besides the lands in question, and the words of the kabuliyat are as follows " Having fixed a yearly rent of Rs. 609 4a. for your nij share of 20,950 bighas, describing them as per boundaries given in the schedule below, you have included it in the aforesaid ijara rent of Rs. 4417 9a. 5r. I shall be in possession of the said chur as a jote. Upon the expiration of the term of the ijara of the said mahals, a pottah and kabuliyat will be respectively given and taken in respect of the jote, regard being had to the quantity of land and amount of rent that shall be determined to belong to your nij share in accordance with the producti