P L D 1967 Dacca 685 (PLP)

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. Appeal dismissed.