1. This is an appeal by the defendants in an action inejectment. The ancestor of the defendants executed a kabuliyat in favour of theplaintiff on the 1st June 1889 in respect of the disputed land, which covers anarea of six cottas. The original tenant died in 1910. On the 4th April 1911,the plaintiff commenced this action to eject the defendants who are hisdescendants, on the ground that as the household interest was not heritable,they had no right to remain in occupation of the land. The Courts below havedecreed the suit. In support of the present appeal, it has been urged that theplaintiff was a raiyat at a fixed rate of rent and was competent to create, ashe did, a permanent heritable interest in favour of his grantee, although thelatter was an under-raiyat. It has not been disputed by the respondent, and inview of the decision in Hari Mohan v. Atal Krishna Bose 23 Ind. Cas. 925 (RuleNo. 1260 of 1913 decided on the 17th June 1913) it cannot be disputed, thatthis result would follow if the plaintiff is a raiyat at a fixed rate, but ithas been argued that he is not a raiyat of that description.

2. In the kabuliyat executed by the ancestor of thedefendants in favour of the plaintiff the interest of the latter is describedas a kayemi karsha jote. The contention of the appellant is that the use of theterm kayemi indicates that the plaintiff was a raiyat at a fixed rent. Thisposition has been controverted by the respondent, and reliance has been placedon the decision in Fazel Sheikh v. Keramuddi Sheikh : 6C.W.N. 916 to show that the term kayemi does not necessarily indicate fixity ofrent. Reference has also been made to paragraph 15 of the report of the RentLaw Commission, dated the 15th July 1880 published in the Calcutta Gazette ofthe 21st July 1880. The opinion was expressed by the Commissioners, as theresult of their inquiries, that in Backergunj even the interest of a howladaris not held at a fixed rent, and this, indeed, was the view adopted by theCourt in the case of Huromohan Mookerjee v. Ranee Lalun Monee Dassee 1 W.R 5.If the interest of a howladar does not imply fixity of rent, it is obvious thata subordinate tenant, whose interest is that of a kayemi karshadar, does nothold at a fixed rent. We are of opinion that the use of the term kayemimports not fixity of rent, but only permanence of occupation of the land, andthis view is in accordance with that adopted in Gayratulla v. Girish ChandraBhaumik : 12 C.W.N. 175 and Fazel Sheikh v. Keramuddi Sheikh: 6 C.W.N. 916. The position, then, is that the plaintiff wasan occupancy raiyat and was not competent to create in favour of the ancestorof the defendants a permanent heritable under-raiyati interest.

3. It has been finally argued on behalf of the appellantthat as the kabuliyat is described as sthayee karsha kabuliyat, the intentionof the grantor, whatever restrictions there might have been on his own right,was to create a permanent and heritable interest in the grantee, and that,notwithstanding the provisions of Section 85 of the Bengal Tenancy Act, it isnot open to him to question the validity of the grant made by him. In ouropinion, there is no force in this contention, for the description of thekabuliyat as "sthayee Karsha" kabuliyat does not necessarily implythat the grantee was intended to have a permanent heritable interest. We musttake that expression along with the description of the interest of the grantorhimself, who was only an occupancy raiyat, and not a raiyat at a fixed rent; hecould not consequently be assumed to have created in the grantee a permanentheritable interest in contravention of the express provisions of the law. Inthis view, no question of estoppel arises.

4. If, then, the grantee was an under-raiyat, as he must beheld to have been, it cannot be disputed that his interest was not heritable.This view is supported by the cases of Arip Mandal v. Ram Ratan Mandal 31 C.757 : 8 C.W.N. 479 and Jamini Sundar Dassi v. Rajendra Nath Chuckrabutty: 11 C.W.N. 519. With reference, however, to the decision ofthe Full Bench in Arip Mandal v. Ram Ratan Mandal 31 C. 757 : : 8 C.W.N. 479 it has been argued that as the present suit was institutedbefore the expiry of the agricultural year in which the tenant died, the suitwas premature and was bound to fail. We are not prepared to accept thiscontention as well-founded. Assuming that the suit was instituted before theexpiry of the agricultural year current at the time when the originalunder-raiyat died, the proper form of the decree would be one for ejectmentagainst his representatives, the defendants, to be executed only on the expiryof that particular agricultural year. It is not disputed that the agriculturalyear mentioned has expired long ago and that the defendants have neverthelesscontinued in occupation of the land. The decree for ejectment made by the Courtbelow must consequently be affirmed and this appeal dismissed with costs.

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Meher Ali and Ors. vs. Kalai Khalashi (23.03.1915 - CALHC)