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Second Appeal No. 643 of 1961, decided on 16th August 1965.

‑Lease‑Person on basis of Amalnama taking settlement of land from landlord for purpose of rearing fish and bailing out water from such land for irrigating other lands‑Tenancy, created by Amalnama, governed by Bengal Tenancy Act, 1885 and not by Transfer of Property Act, 1882.

Md. Abdul Karim and another v. Amiruddin Patwari and others 10 P L R Dacca 371; Krishna Lal Choudhury v. Salim Mahmud Chowdhury 19 C W N 414 and Ramgopal Bysack v. Nurumuddih alias Nur Mohamad Mundal I L R 20 Cal. 446 held not applicable.

‑Finding of fact‑Cannot be disturbed in second appeal.

Azizul Islam for Appellant.

Syed Mohsen Ali for Respondents Nos. 1, 3 and 6 to 9.

Moazzem Hossain for the Deputy Registrar.

This appeal arises out of a suit for confirmation of possession on declaration of plaintiffs' right and title to the case land. The case of the plaintiffs is briefly this: The case land is a part of C. S. No. 315 appertaining to C. S. Khatian No. 109 of Mouza Manik Para. It was formerly a been known as Gaochulkanu Beel. The disputed portion of this plot was in khas possession of the landlords. Plaintiffs took settlement of it from the landlords on the basis of an Amalnama dated 3rd Agrahayan, 1352 B. S. at the rent of Rs. 4‑8‑0 for rearing fish and bailing out water for irrigating other lands, and for digging fish pits. Since the settlement, plaintiffs have been in possession of the case land. Around the case land, there are culturable lands belonging to plaintiffs, defendant No. 1 and others. But during the last C. S. operations, the entire C. S. plot No. 315 was recorded in the name of Kashmat ullah and others, the predecessors of the defendants. But the defendants or their predecessors did not catch fish from the case land. On the 15th Agrahayan, 1351 B. S. defendants attempted to catch fish from the case land but due to the inter vention of the plaintiffs they could not catch fish. Hence the present suit.

Defendant No. 1 contested the suit. Defence is shortly this: About 50 years back, predecessor of the defendants took settlement of a part of C. S. plot No. 315 from Shyama Charan and others, but they possessed the entire plot on the basis of settlement. Subsequently the landlords took a Kabullat dated 14‑12‑1913 from Kashmatullah, father of defendant No. 1 and another for the entire plot No. 315 along with other lands at a jama of Rs. 16‑4‑0. The Khatian was accordingly prepared. Later on due to increase of land, the jama was enhanced to Rs. 17‑12‑0/71 gandas. Since the settlement, predecessors of the defendants and after them, defendants have been in possession of the entire plot No. 315 including the case land by catching fish, by bailing out water for irrigating other land and by excavat ing fish pits.

The learned Munsif, on a consideration of the evidence, held that the plaintiffs had their right, title and possession in the case land.

On appeal, the learned subordinate Judge affirmed the decision of the learned Munsif. Hence the second appeal.

Mr. Azizul Islam, learned Advocate for the appellant has contended that the lower appellate Court erred in law in holding that the plaintiffs' alleged tenancy for catching fish created by Amalnama Exh. I was not governed by the Transfer of Property Act. It has been further argued that as the alleged tenancy was not created by any registered document, the lower appellate Court erred in not dismissing the suit. The learned Advocate has further argued that by the Amalnama, no lease of any land was granted but that only fishery right was given by it. In the Amalnama there is no mention that the lease was granted for catching fish. By it, lease of land (Bhumi) was granted. The document is styled as "Raishya Bhumi Pattan Amalnama". The contention that by Amalnama. Tenancy of land was not granted, cannot be accepted.

The learned Advocate for the appellant has contended that in view of the statement in paragraph 1 of the plaint, it is to .be held that the lease was for catching fish. But in the same paragragh, there is also the statement that the settlement was taken fur bailing out water to other lands of the plaintiffs for growing crops.

It has also been argued that the land is beel and that there is no evidence that plaintiff have culturable land in the surround ing of the beel. In this connection, the learned Advocate took me through the evidence of P. W. Nabiruddin and drew my attention to his statement that the plaintiffs would catch fish from the case laud. But there is also his statement that other lands were irrigated by bailing out water from the case land. Attention was also drawn to the statement of P. W. Umar Ali Sardar, who deposed that plaintiffs would catch fish from the case land and would separate jute fibre in it. Separation of jute fibre would also amount to use of the land for agricultural purpose, because jute is a product of agriculture. It cannot ‑be held from the evidence of P. Ws. 1 and 3 that the land is not used for agricultural purposes.

Bailing out water to other land would also be for agri cultural purpose. Although this (sic) land may not be the surrounding land of the beel. The purpose for the grant of the tenancy is not mentioned in the Amalnama. But the lower appellate Court from evidence found that it was for irrigating other lands and for other purpose. This is a finding of fact based on evidence and cannot be interfered with in second appeal.

As the lease was for agricultural purposes also, the trial Court rightly held that the tenancy created by Amalnama was governed by the Bengal Tenancy Act and that the Amalnama did not require registration. The learned Advocate for the appellants has referred to the cases in 10 P L R Dacca 371; 19 C W N 414 and I L R 20 Cal. 446, in support of his contention that the tenancy created by the Amalnama is governed by the Transfer of Property Act.

In the case of Md. Abdul Karim and another v. Amiruddin Patwari and others (110 P L R Dacca 371), it has been laid down that if the tenancy is not for agricultural or horticultural purpose or for purposes connected therewith, the tenancy would not be governed by the provisions of the Bengal Tenancy Act but by those of the Transfer of Property Act and, as such, the tenancy must be created by a document executed by both the parties and must be registered. In this case it has been found that the tenancy was created also for the purposes connected with agriculture.

In the case of Krishna Lal Choudhury and others v. Salim Mohamed Choudhury (19 C W N 514), it has been held that a jalkar does not necessarily imply any right to soil. But in the present case by Amalnama, no jalkar right was granted but right to the land was granted.

In the case of Ramgopal Bysack and others v. Nurumuddin alias Nur Mahamed Mundal (I L R 20 Cal. 446), it has been laid down that a jalkar right or a right of fishery is governed by the provisions of the Transfer of Property Act. But the lease in the present case was not relating to jalkar right.

The above‑mentioned case are of no assistance to the appellant in this case.

Mr. Azizul Islam, learned Advocate for the appellant has also argued that the lower appellate Court erred in law in not framing any issue regarding adverse possession though the defen dants raised the plea of acquisition of title by adverse possession. Although the issue regarding adverse possession was not framed by the lower appellate Court, it appears, the learned Subordinate Judge considered the question of adverse possession.

Mr. Syed Mohsen Ali, learned Advocate appearing for the respondents has contended in reply that no question of adverse possession could arise, as on discussion of evidence on both sides, the Courts below made the concurrent finding that plaintiffs were in possession. This Contention has force as it has been found that plaintiffs have been in possession of the case land.

Mr. Islam has contended that if the issue of adverse possession had been framed, the defendants would have adduced sufficient evidence on this point. The trial Court also did not frame any issue regarding adverse possession, but the issue regarding limitation was framed. The issues regarding limitation and adverse possession are closely connected and the evidence would be the same in the facts of the present case. It was held that the suit was not barred by limitation. It would follow that defendants did not acquire title by adverse possession.

The learned Advocate for the appellant has also argued that the Courts below erred in law in not relying upon the statutory presumption of correctness of the entry in the C. S. Khatian No. 109. In the C. S. Khatian the plot No. 315 was recorded in the names of the predecessors of the defendants. The trial Court made the following observation in connection with this:‑

"Exh. G is the certified copy of the disputed C. S. Khatian. It records the entire disputed plot 315 along with other plots in the name of Kosmatullah and some other persons at a Jama of Rs. 16‑4‑0. It is admitted by the D. W. 1 who is contesting that the disputed land did not appertain to the holding bearing of Jama of Rs. 16‑4‑0. Of course he says that due to increase of land, the Jama was enhanced to Rs. 17‑12/7 gandas in 1338 B. S. But he admits that the increase was on all sides of the watery portion due to recession of water and that he has got no personal knowledge as to the reason of the enhancement of the Jama. From his Dakilas as also it cannot be ascertained that the Jama was due to increase of land. This witness has also stated that Mosrat's land was included in the increment of land. But Exh. 3 (a) and certified copy of judgment of local Subordinate Judge's Court in Title Appeal No. 51 of 1944 of Title Suit No. 227 of 1943 of the local 1st Munsif's Court shows that Kosmatullah father of the contesting defendant along with others instituted a suit against Mosrat for recovery of Khas possession of part of C. S. Plot 315 and there it was decided that the same belongs to Mosratulla and Kosmatullah and others have no title thereto. Exh. 3(b) certified copy of judgment of the Hon'ble High Court shows that there was an appeal against the decision of the learned Subordinate Judge by Kosmat and the Hon'ble Justice B. Zaman upheld the finding of the learned Subordinate Judge and dismissed the appeal. After these decisions of the 1st and 2nd Appellate Courts, it does not lie in the mouth of defendant No. 1 to say that Mosrat's land was included in the alleged increment. It simply shows that he is a hardened liar. Those two judgments have further held that the C. S. Khatian recording the disputed plot 315 in its entirely in the name of Kosmat and others is wrong."

The lower appellate Court referred to Exhs. 3(a) and 3(b) which rebutted the presumption created by the C. S. Khatian. The learned Subordinate Judge observed as follows:‑

"One Mosratulla and another took settlement of some land out of that beel on the strength of a Kabuliyat dated 24‑9‑14 Exh. 4(b). Kosmatullah and others did not recognise the settlement of Mosratulla and others as they claimed the entire C. S. plot No. 315 on the strength of their earlier settlement, So Kosmatulla and others brought Title Suit No. 227 of 1943 in the 1st N4unsif's Court. They got a decree in that suit.

There was Appeal No. 51 of 1944 against that decision. That appeal was allowed and the plaintiff's suit was dismissed with a finding that Masratulla and others had jute right in the disputed land of their suit. Certified copy of that judgment is marked Exh. 3 (a) There was Appeal No. 1764/45 against the decision of the 1st Appellate Court. That appeal was dismissed. Certified copy of that decree is marked Exh. 3 (b). Thus from Exhs. 3 (a) and 3(b) it appears that Kosmatulla and others did not take settlement of the entire beel covered by plot No. 315."

It cannot be held that the Courts below did not consider about the question that the Khatian carried the presumption that it was correct.

There is no ground to interfere with the decision of the learned subordinate Judge.

In the result, the appeal is dismissed with costs and the judgment and decree passed by the lower appellate Court are affirmed.

K. B. A.

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