JUDGMENT M.C. Ghose, J. - This is an appeal by the Defendant in the following circumstances:-The Defendant is the owner of a certain taluk. Within that taluk there is a certain tenancy. The lands of this tenancy were mortgaged by the proforma Defendant to the Plaintiffs, who in execution of the mortgage decree, purchased the lands. In the sale certificate it was stated that the tenancy was a tenure and a transfer fee under sec. 12 was accordingly paid. The Defendant landlord filed a Misc. Case under sec. 26 (J) and claimed that it was an occupancy holding and he was entitled to a premium of 20 per cent. The Munsif on 22nd May, 1931, decided the case in favour of the landlord. The transferee's petition to the High Court was rejected on 21st January, 1932. Thereafter on 18th July. 1932, the transferee instituted the present suit for a declaration that the holding is a mukrari one and if it be held that it is an occupancy holding, that the holding is transferable without 'payment of the landlord's fee. The Defendant pleaded that the suit was barred by res judicata on account of the previous decision in the Misc. case and that the Plaintiff was an occupancy raiyat subject to sec. 30 (b) of the Bengal Tenancy Act. The trial Court held that the suit was not barred by resjudicata and that the land was an occupancy holding, subject to sec. 30 (b); but by a contract in the kabuliyat of 1909 the tenant obtained a right of transfer from the Landlord and the landlord is therefore not entitled to get any premium under sec. 26 (J). Against that decree both the parties appealed and the learned Subordinate Judge has affirmed the decree of the trial Court. The first question urged in appeal is that the suit is barred by res judicata on account of the decision in the Misc. Case. This matter is not free from difficulty. No previous decision has been cited on either side. On a consideration of arguments on both sides it appears to me that the decision of the Munsif dated the 22nd May, 1931 to the effect that the Defendant is to pay a certain sum of money as premium under sec. 26 (J) to the Defendant (?) is res judicata. No previous decision has been cited on either side. On a consideration of arguments on both sides it appears to me that the decision of the Munsif dated the 22nd May, 1931 to the effect that the Defendant is to pay a certain sum of money as premium under sec. 26 (J) to the Defendant (?) is res judicata. That decision though made in a summary proceeding was a final decision and cannot be set aside in this suit. But the finding in that suit that the holding in question is always liable on transfer to pay a premium cannot be held to be res judicata. That was a summary proceeding and there the only question for decision was whether the landlord was entitled to get a transfer fee on the transfer which had been made. The question now is whether the holding in suit is liable on a transfer to pay a transfer fee to the landlord. For this question the Plaintiff in my opinion was entitled to institute a regular suit. 2. The next question is whether the decision of the Court below is correct. The decision has been based on the terms of a kabuliyat of.1909 executed by the Plaintiff's predecessor in favour of the Defendant. The kabuliyat was accepted by the Defendant. The relevant words of the. kabuliyat are in these terms: I shall be enjoying the said annual rayati in succession to my sons and grandsons with the rights of gift, sale and exchange. 3. Since the landlord deliberately permitted the owner of the occupancy holding to have the rights of gift and sale and exchange, it appears that he cannot go behind the contract and claim a premium under sec. 26 (D). On a fair interpretation of sec. 26 (B), (C), (D) and (J), it would appear that the transfer fee of 20 per cent, is not to be imposed on a holding where by a special contract the landlord has given the right of transfer to the tenant. It is observed that this contract was made in 1909 long before the amendment of the Bengal Tenancy Act. By the amendments of the Bengal Tenancy Act the legislature intended to improve the conditions of the raiyats. It is observed that this contract was made in 1909 long before the amendment of the Bengal Tenancy Act. By the amendments of the Bengal Tenancy Act the legislature intended to improve the conditions of the raiyats. It was not the intention of the Legislature to make worse the position of a tenant who had by a contract obtained from the landlord a right to transfer his holding. 4. The appeal is dismissed subject to the observations made above. Parties will bear their own costs.