1. The defendants were, at the time of the suit, tenants cultivating seven plots. They have cultivated these plots, on the facts, for 20 continuous years. They had thus acquired a right of occupancy in the holding under Section 11, Act II of 1901. The learned District Judge appears to have formed the conclusion that they are not occupancy tenants because they had not claimed to be occupancy tenants. It is true that the patwari is still recording them as non-occupancy tenants, although he states that they have been cultivating the plots for twenty years. It is not shown that they have claimed occupancy rights, but this circumstance does not affect the fact that they are occupancy tenants, for the section clearly says that a tenant, who has held the same land continuously for a period of 12 years shall have a right of occupancy in the land. There is no necessity to claim this right. The right is created by continuous occupation for 12 years; It is thus the case that the defendants are occupancy tenants. The rent is recorded at Rs. 56 a year. It is in evidence that they have and rent at Rs. 65 a year for a few years previous to the date of suit but I find that there is no evidence to show they paid rent at a rate greater than Rs. 56 a year at the period when they acquired occupancy rights. Section 41 has thus application. Section 41 states very clearly that the rent of an occupancy tenant shall be liable to an enhancement only by registered agreement or by decree or order of a Revenue Court.
2. The plaintiff suggested that the defendants had agreed to pay at the rate of Rs. 65 a year. He has not proved any agreement, but even if there had been an oral agreement or any agreement other than a registered agreement, the enhanced rate cannot be enforced in a Revenue Court. This appeal is on the sole point that the correct rent of the holding is Rs. 65 a year. In support, the learned Counsel for the appellant relies on the case of Mackinnon v. Mahant Tilkanchan Gir 33 Ind. Cas. 417 of Board of Revenue. In that case when ah occupancy tenant had, in order to avoid a suit for enhancement, orally agreed to pay an enhanced rent, but no registered agreement had been executed, and he subsequently sued under Section 95 for a declaration that rent was only payable at the previous rate, the Board of Revenue decided against him. It is not clear that the Board meant to lay down that, ordinarily such an oral agreement would have the affect of enhancing the rent. If they did mean to lay down such a proposition, I am unable to agree with it, for the provisions of Section 41 are very clear, and to read into them a condition that the rent of an occupancy tenant is liable to enhancement by an unregistered agreement or an oral agreement, is impossible. The point, however, hardly arises here for there is, no evidence to any agreement. The lower Courts were, therefore, right in decreeing the suit at the rate of Rs. 56 only. I dismiss this appeal with costs.