Nilmamud Sarkar v. Boul Das

In this suit the Plaintiffs sought to recover possession, with mesne profits, of certain jalkars after declaration of their title thereto. It appears that the Plaintifis' claim as lessees of certain dur-putnidars to whom they gave three kabuliyats, dated 20th Chaitra 1309, in proportion to the shares of those dur-putnidars, that is to say, for 10 ans. to Kedar Bukhsh Sirkar and others, for 3 ans. to Goolamuddin and others, and for the remaining 3 ans. to Raj Chandra Shaha and others, including one Baharuddin. Baharuddin did not accept the Plaintiffs' kabuliyat. The Defendants denied the titles both of the Plaintiffs' lessors and the Plaintiffs themselves and pleaded that the jalkars did not, as the Plaintiffs alleged, appertain to Lat Aria Hansraj. The Plaintiffs' suit has been dismissed by both the Courts below. The learned Sessions Judge disposed of it solely on the ground that the Plaintiffs' kabuliyats were not leases of the jalkats and conferred no title on the Plaintiffs. It may be stated that the Plaintiffs never obtained possession of the property said to be leased to them, the kabuliyats being for the years 1310 to 1315 inclusive, and the Defendants having been in possession throughout. We concur in the opinion expressed by the learned Subordinate Judge that the kabuliyats were not leases and did not operate to transfer any interest in the property to the Plaintiffs. A lease of immoveable property is defined in the Transfer of Property Act, sec. 105, as “a transfer of a right to enjoy such property made for a certain time express or implied, or in perpetuity” for the considerations therein specified. Sec. 107 provides that “a lease of immoveable property from year to year or for any term exceeding one year or reserving a yearly rent can be made only by a registered instrument.” A kabuliyat, which is only an undertaking by the prospective tenant to take the tenancy, is not a lease. We agree with the opinion to that effect expressed; in Nand Lal v. Hanuman Das, Kashi Gir v. Jogendra Nath Ghose and Turof Sahib v. Esuf Sahib. In some cases it might be open to the Plaintiff to prove his tenancy aliunde but here it is clear that the Plaintiffs were never in possession and that the tenancy never really commenced. Their title is based entirely upon the three kabuliyats which as we have said, confer no title. This appeal accordingly fails and dismissed with costs.