Judgement Appeal from a decree of the High Court (Sept. 4, 1901) varying a decree of the Subordinate Judge of the 24 Pergunnahs (Feb. 19, 1900). The question was as to the right of the plaintiff to eject the defendant from certain lands in Khidderpur, in the suburbs of Calcutta, treating him as a tenant at will, while the defendant claimed a permanent right of occupancy. The plaintiff was a lessee of four villages including Khidderpur under a lease for ten years dated November 4, 1895, executed by Syed Ashraf-ud-din Ahmed, who was appointed matwali of the Hoogly Imambara by order of the Bengal Government dated June 25, 1879. The lands in suit for many years were cultivated; in late years they have been covered with tiled huts owing to the extension of the city of Calcutta and the building of docks at Khidderpur. The defendants main pleas were— (1.) That he was not a tenant at will liable to ejectment, but held a permanent interest in the land. (2.) That he had acquired a permanent right of occupancy in the land under the rent law in force in Bengal and by long adverse possession. (3.) That the lands in suit were not endowed Law Rep. 31 Ind. App. 144 ( 1903- 1904) Upendra Krishna Mandal V. Ismail Khan Mahomed 52 property of the Imambara, and that the plaintiff had acquired no right under this lease to eject. (4.) That the buildings erected on the land were with the acquiescence of the superior proprietor, who was estopped from ejectment, or at any rate from ejecting without paying compensation. The Subordinate Judge found that the tenure was permanent, relying on the ancient documents produced, and also on a kabuliyat dated February 18, 1830. He was, however, of opinion that the present matwali was not bound by the acts of his predecessors, and that he could resume the lands on terms of bearing the legitimate consequences of the conduct of his predecessors—namely, he must make good to the defendant the damages which he is going to sustain by the very long acquiescence on the part of his predecessors. The High Court, on the other hand, decided that a new tenure was created by the kabuliyat dated February 18, 1830; that the terms of the deed itself did not create a permanent tenure; and that the conduct of the parties was not material. The High Court, on the other hand, decided that a new tenure was created by the kabuliyat dated February 18, 1830; that the terms of the deed itself did not create a permanent tenure; and that the conduct of the parties was not material. It also decided that there had been no acquiescence creating an estoppel to eject, or a liability to compensate on ejectment. In the result, a decree for ejectment was made. De Gruyther, for the appellant, contended that he was the holder of a permanent tenure; that the lands in suit had been shewn by the evidence to have been all along held at an unvarying rate of rent; that the transfers and succession had been recognised by the zemindars and their successors; that buildings had been erected thereon with their tacit acquiescence. With regard to the managers of the endowment, it had been shewn that the matwalis had realized one unvarying rent from the appellants predecessors in title, and that they must be deemed to have recognised both the hereditary and transferable character of the holding. The High Court erred in its estimate of the documents adduced, and notably in regard to the kabuliyat of 1830, which it treated, contrary to its express terms, as the origin of title; they considered that so far as it was in recognition of title it only recognised a bill of sale limited to the fixtures and buildings, and having no reference to the land. The sale, however, was in express terms of land, and the kabuliyat was granted in recognition of the purchase, and not as a fresh root of title. The evidence raised a clear presumption of a permanent tenure, and there was no evidence to rebut it. He referred to Dhunput Singh v. Gooman Singh (( 1867) 11 Moores Ind. Ap. Ca. 433, 463.), Sutto Surrun Ghosal v. Mohesh Chunder Mitter (( 1868) 12 Moores Ind. Ap. Ca. 263.), Ram Ranjan Chuckerbutty v. Ram Narain Singh (( 1894) L. R. 22 Ind. Ap. 60, 66.), and Bhaiya Ardawan Singh v. Udey Partab Singh, (( 1896) L. R. 23 Ind. Ap. Ap. Ca. 433, 463.), Sutto Surrun Ghosal v. Mohesh Chunder Mitter (( 1868) 12 Moores Ind. Ap. Ca. 263.), Ram Ranjan Chuckerbutty v. Ram Narain Singh (( 1894) L. R. 22 Ind. Ap. 60, 66.), and Bhaiya Ardawan Singh v. Udey Partab Singh, (( 1896) L. R. 23 Ind. Ap. 64, 72.) Further, the tenure was in its inception agricultural, and under Act X. of 1859 and the previous law which the Act did not alter, the appellant had acquired a permanent right of occupancy see s. 6, which was not affected by his acceptance of a pottah which was merely regarded as an acknowledgment. Reference was made to Thakooranee Dossee v. Bisheshur Mookerjee (( 1865) Beng. L. R. Supp. Vol. 202, 230.) ; Ram Chunder Dutt v. Jughes Chunder Dutt (( 1873) 12 Beng. L. R. 229, 235.); Ismail Khan v. Aghore Nath Mukerjee (( 1903) 7 C. W. N. 734.); Winterscale v. Surat Chandra Banerjee. (( 1903) 8 C. W. N. 155.) Adverse possession since 1830 was proved; and see Rampal Singh v. Balbhaddar Singh. (( 1902) L. R. 29 Ind. Ap. 203.) Cohen, K.C., and Bonnerjee, for the respondent, contended that the Courts below had concurrently found against the appellants permanent tenure. They relied upon the kabuliyat of 1830. Nothing more than a tenancy at will was either created or recognised thereby. When the terms of it are considered, they differ from what would have been used if the intention had been to grant a permanent tenure. Besides, it was executed by the matwali, who had no power to aliene or to bind his successors, and could not therefore grant a permanent tenure. There was no evidence that any of the successive matwalis had recognised the appellants holding as permanent see Ismail Khan Law Rep. 31 Ind. App. 144 ( 1903- 1904) Upendra Krishna Mandal V. Ismail Khan Mahomed 53 Mahomed v. Jaigun Bibi (( 1900) Ind. L. R. 27 Calc. 570, 676. De Gruyther replied. July 26. The judgment of their Lordships was delivered by LORD EOBERTSON. The lands in dispute in this suit, which are about two bighas in extent, are situated in Khidderpur, a suburb of Calcutta within municipal limits, They are now covered for the most part with tiled huts and a one-storeyed building occupied as a house or shop. July 26. The judgment of their Lordships was delivered by LORD EOBERTSON. The lands in dispute in this suit, which are about two bighas in extent, are situated in Khidderpur, a suburb of Calcutta within municipal limits, They are now covered for the most part with tiled huts and a one-storeyed building occupied as a house or shop. Some apparent com plications are introduced into the case by a sub-division of the property; but this partition may be disregarded for the purposes of the present question. The disputed ground admittedly falls within the confines of a lease granted to the respondent in 1895 by Syed Ashraf-ud-din Ahmed, who was matwali of the Hooghly Imambara; and the theory of the suit of ejectment brought by the respondent is that the appellant is a tenant at will. The appellants answer is that he has, as against the respondent, an independent permanent right to the ground in dispute. Various questions, much discussed in the Courts below, have been eliminated from the controversy, and it is no longer necessary to discuss the Bengal Tenancy Act, which does not apply. The true matter of controversy is whether the appellant ha* not made out that he and his predecessors have held under & grant of a permanent transmissible and inheritable right. The case of the appellant rests, in the first place, upon- a series of transmissions of the property by sale and mortgage which go back as far as 1826, and the continuous possession of his predecessors in title at an unaltered rent. It is unnecessary to examine these transmissions in detail; it is sufficient to say that what is sold and bought and what is mortgaged purports in each case to be a permanent inheritable right. The answer of the respondent is that these transactions are not recognised by his predecessors in title and are not binding on him; and the respondent has produced a kabuliyat, dated February 18, 1830, which he represents, and the High Court has held, to be the creation of the present holding of the appellant. Its terms, therefore, require close examination; and their Lordships are of opinion that, so far from supporting, it goes to negative the respondents case. The kabuliyat is, in the first place, presented to the matwali by one Udoy, who announces himself as the purchaser under a bill of sale. Its terms, therefore, require close examination; and their Lordships are of opinion that, so far from supporting, it goes to negative the respondents case. The kabuliyat is, in the first place, presented to the matwali by one Udoy, who announces himself as the purchaser under a bill of sale. But then, say the learned judges, the bill of sale is referred to as a sale only of the fixtures and structures. This, however, is quite a mistake; what is described in the bill of sale as " situate in the village of mouzah Khidderpur within kismut pergunnah Magura under the possession of the Saheb " is "former holding of Jagomohan Shaha, deceased, fixtures and structures," Jagomohan Shaha having been, in fact, the predecessor (and husband and brother) of Udoys vendors. And the kabuliyat goes on to describe the subject of his purchase (which the High Court think was only fixtures and structures) as " amounting to 2 bighas 18 cottahs," and afterwards as "the said land." The whole document is only some twenty lines of print, and is free from any ambiguity. This kabuliyat is, therefore, a distinct recognition by the Saheb of the bill of sale as a transmission of the right. If, but only if, the kabuliyat was the origin of the appellants title and was a fresh grant by the matwali, the limited nature of the granters own rights would have to be considered. But the true view of the kabuliyat is that it is a recognition of an already existing right, over which the matwali had no control. Accordingly, this having occurred so long ago as 1830, and the receipts proving uninterrupted payment of the same rent, the question is whether (in the absence of evidence to the contrary) the appellant has not made out his case; and their Lordships consider that he has. Law Rep. 31 Ind. App. 144 ( 1903- 1904) Upendra Krishna Mandal V. Ismail Khan Mahomed 54 Their Lordships will, therefore, humbly advise His Majesty that the appeal ought to be allowed and the decrees of both Courts set aside, and the suit dismissed with costs in both Courts. The respondent will pay the costs of the appeal.