JUDGMENT 1. This is an appeal on behalf of the Defendant in an action for recovery of possession of immoveable property and mesne profits. The disputed land is admittedly the property of the Plaintiff-Respondent. On the 29th December 1904, he granted an amalnamah to the Defendant-Appellant, the terms of which we shall presently examine. It is sufficient to mention at this stage that in February 1906, the Plaintiff re-entered upon the land and settled it with other tenants. The result was that the Defendant brought a suit under sec. 9 of the Specific Relief Act which was decreed in her favour on the 26th May 1907. The Plaintiff thereupon commenced the present action on the 28th August 1907, for establishment of his title, for declaration that the Defendant had not acquired any right under the amalnamah and that if she had, her right had been extinguished by breach of the conditions named therein, and also for recovery of possession and manse profits, should the Defendant, in the interval, obtain possession of the disputed land by execution of the decree in the possessor suit. The Defendant did as a matter of fact execute the decree and obtain delivery of possession on the 13th December 1907. She resisted the claim substantially on the ground that she was a tenant under the Plaintiff, that her interest had not terminated, and that, in any event, the Plaintiff was incompetent to bring the present action before he had fulfilled the requirements of sec. 155 of the Bengal Tenancy Act. The Subordinate Judge made a contingent decree in favour of the Plaintiff. He directed the Defendant to pay the balance of the selami and imposed the condition that, upon default, the suit would stand decreed. If, on the other hand, the premium was paid the decree directed the Plaintiff to execute a registered lease in favour of the Defendant. Against this decree, the Defendant appealed to the District Judge and a cross-appeal was filed on behalf of the Plaintiff. The District judge has held that the Plaintiff is entitled to recover possession and manse profits. The Defendant has now appealed to this Court and on her behalf it has been contended that the District Judge has taken an erroneous view of the effect of the provisions of sec. The District judge has held that the Plaintiff is entitled to recover possession and manse profits. The Defendant has now appealed to this Court and on her behalf it has been contended that the District Judge has taken an erroneous view of the effect of the provisions of sec. 155 of the Bengal Tenancy Act, that they are applicable to the tenancy in question notwithstanding the provisions of sec. 178, and that consequently the Plaintiff is not entitled to a decree for ejectment. This argument has been controverted on behalf of the Respondent; and it has been contended that the effect of the amalnamah was to place the Defendant in the position of a licensee, that she was at no time a tenant of the Plaintiff, and that consequently no question could arise as to the right of the Plaintiff to eject her without recourse to the procedure laid down in sec. 155 of the Bengal Tenancy Act. 2. The first point which requires consideration is as to the true position of the Defendant-was she a licensee or was she a tenant under the Plaintiff. The learned Vakil for the Respondent has suggested that the Defendant was a licensee, because there was no present demise in her favour by the amalnamah and in support of this position he has relied upon the case of Panchanon v. Chandi Charan 14 C. W. N. 874 (1910) To determine whether the contention of the Respondent is well-founded, it is necessary to examine the terms of the amalnamah. This document which was neither stamped nor registered, recites that the Defendant had applied for the grant of a mourasi mokurari chukdari lease from the Plaintiff in respect of about 1000 bighas of land situated in the Sunderbans; and that in anticipation of the execution of a proper lease, the Plaintiff has agreed to place the Defendant in possession of the land upon certain specified conditions. The premium for the grant was settled at the rate of Rs. 2 per bigha, and a covenant was inserted to the effect that out of the total sum of Rs. 2,000 payable as premium, one fourth, that is, Rs. 500 would be paid in Magh 1311 and the remainder, that is, Rs. 1,500 by equal in stamens in the month of Magh in each of the years 1312 and 1313. 2 per bigha, and a covenant was inserted to the effect that out of the total sum of Rs. 2,000 payable as premium, one fourth, that is, Rs. 500 would be paid in Magh 1311 and the remainder, that is, Rs. 1,500 by equal in stamens in the month of Magh in each of the years 1312 and 1313. The document further expressly states that in default of payment of bonus, the amalnamah would stand cancelled and cease to be operative. The next clause of the instrument provides for the payment of rent. During the years 1312 and 1313 the land was to be held rent-free. In the year following, rent was to be paid at the rate of annas eight per bigha. In 1315 the rate was to be Re. 1 per bigha. In 1316 the rate would Rs. 1-8 a bigha, which was described as the full rent payable. The only other portion of the document to which reference need be made is the fifth paragraph. This paragraph recites that in 1312 the applicant for the lease would bring under cultivation 250 bighas of land, that the whole would be brought under cultivation in 1313 and that in the event of failure to cultivate the land in 1312 and 1313 the grantor would be at liberty to re-enter and settle the land with other tenants. Upon a consideration of the various provisions we have set out, it is manifest that there was a present demise and the suggestion that there was a mere agreement for a future demise is not sustainable. Two circumstances are, in our opinion, conclusive. In the first place, although upon non-payment of the premium, as provided in the document, there might be a for future yet the tenancy was obviously intended to begin from 1312. There could not possibly be any forfeiture till Magh 1313 when the last installment of the bonus would be payable; but the document expressly provides that the land would be held rent-free in the years 1312 and 1313, in other words, the possession of the grantee would be that of a tenant during those years. In the second place, as there was to be a for feiture if the whole of the land was not brought under cultivation by the year 1313, the possession of the grantee would be that of a tenant in 1312. In the second place, as there was to be a for feiture if the whole of the land was not brought under cultivation by the year 1313, the possession of the grantee would be that of a tenant in 1312. To put the matter in another way, if no tenancy was intended to be created from the very beginning of the year 1312, no question could possibly arise as to the forfeiture of a tenancy by reason of failure to pay the premium or to cultivate the lands. In our opinion, it cannot be seriously disputed that the intention here was to create a present demise, and the possession of the Defendant was that of a tenant. In support of this view, reference may be made to the decision in Parmanan Das v. Dharsey Virji I. L. R 10 Bom. 101 (1885), where Sir Charles Sargent, C. J., observed that the answer to the question whether there was a present demise or merely an agreement to make a demise in future, must depend upon the paramount intention of the parties [Jones v. Reynolds 1 Q. B. 506, 516 (1841). and Chapman v. Towner 6 M. & W. 100, 104 (1840).. In fact the tests which were applied by the learned Chief Justice in that case are conclusive in respect of the case now before us. We must, therefore, examine the rights and liabilities of the parties on the assumption that the position of the Defendant was that of a tenant under the Plaintiff. But it is needless, for our present purpose, to determine the precise position of the Defendant as tenant and to what extent her right might have been affected by the omission of the landlord to execute in her favour a registered instrument; the decision of this Court in the cases of Bibifawahir Kumari v. Chatterput Singh 2 C. L. J. 343 (1905) and Sinigheeram v. Bhagbat Chancier 11 C. L. J. 543 (1910). tends to show that her right would not in substance be affected by such omission on the part of the landlord. But whatever her position might be if she was a tenant, the question arises whether it was not obligatory upon the Plaintiff to comply with the requirements of sec. 155 of the Bengal Tenancy Act. 3. tends to show that her right would not in substance be affected by such omission on the part of the landlord. But whatever her position might be if she was a tenant, the question arises whether it was not obligatory upon the Plaintiff to comply with the requirements of sec. 155 of the Bengal Tenancy Act. 3. Sec. 155 provides-we quote only so much of the section as is applicable to the case before us,-that a suit for ejectment of a tenant on the ground that he has broken a condition on breach of which he is, under the terms of a contract between him and the landlord, liable to ejectment, shall not be entertained, unless the landlord has served in the prescribed manner a notice on the tenant specifying the particular misuse or breach complained of and where the misuse or breach is capable of remedy, requiring the tenant to remedy the same, and in any case to pay reasonable compensation for the misuse or breach, and the tenant has failed to comply within a reasonable time with that request. It is not disputed that if sec. 155 is applicable, the present suit must fail. But it has been argued on behalf of the Respondent that the section is inapplicable, because as the amalnamah was granted in view of a lease for the reclamation of a waste land, under the proviso to sec. 178 of the Bengal Tenancy Act, the operation of sec. 155 is excluded. Now, cl. (c) of sub-sec. (1) of sec. 178 provides that nothing in any contract between a landlord and a tenant made before or after the passing Of the Bengal Tenancy Act shall entitle a landlord to eject a tenant otherwise than in accordance with the provisions of the Act. The provision mentioned is contained in sec. 89 which lays down that no tenant shall be ejected from a tenure or holding except in execution of a decree. This section is to be read along with sec. 10 which lays down that a holder of a permanent tenure shall not be ejected by the landlord except on the ground that he has broken a condition on breach of which he is, under the terms of a contract between him and his tenant, liable to be ejected. It is clear, therefore, that if sec. 178, sub-sec. (1), cl. 10 which lays down that a holder of a permanent tenure shall not be ejected by the landlord except on the ground that he has broken a condition on breach of which he is, under the terms of a contract between him and his tenant, liable to be ejected. It is clear, therefore, that if sec. 178, sub-sec. (1), cl. (e) stood by itself, read with sec. 10 and sec. 89, the Defendant could not possibly be ejected by the Plaintiff without recourse to suit. When therefore the Plaintiff took the law into his own hands and forcibly dispossessed the Defendant in February 1906 on the allegation that there had been a breach of one of the terms of the lease, his conduct was clearly unlawful. The only course open to him was to proceed in accordance with the statutory provisions on the subject. But it is suggested that the effect of the proviso to sec. 178 is to exclude the operation of sec. 155 and these sections taken together render sec. 89 inapplicable. In our opinion, there is no foundation for this contention. The proviso to sec. 178 to which reference is made lays down that nothing in the section shall affect the terms and conditions of a lease granted bond fide for reclamation of waste land. It is difficult to appreciate what terms and conditions of the lease would be affected if we hold that the landlord must proceed under sec. 155 of the Bengal Tenancy Act, The amalgam does not provide either expressly or by implication that in the event of a breach of one of its conditions, the landlord would be entitled to take possession of the premises by force or that he would be entitled to sue and recover possession without fulfillment of the conditions prescribed by sec. 155. In our opinion, it is reasonably plain that the proviso to sec. 178 does not exclude the operation of sec. 155 of the Bengal Tenancy Act. In this view the decree made by the District Judge cannot be supported. The result therefore is that this appeal must be allowed, the decree of the District Judge discharged and the suit dismissed with costs in all the Courts.