1. This appeal has arisen out of a suit for recovery of arrears of rent, on the basis of a kabuliat executed by the predecessor-in-interest of the appellant in the year 1295 B.S. stipulating for payment of rent at the rate of Re. 1-4-0 per bigha, the highest rate of rent payable in respect of lands in the locality on the entire area in possession of the defendant, which was found to be considerably larger than the area mentioned in the kabuliat. On the pleadings of the parties, the issue raised in the case, relevant for the purpose of the present appeal, was the following: Can the plaintiffs recover additional rents for excess area? If so, what would be the rental of the holding in suit?'
2. The trial Court held that so far as the claim for recovery of arrears of rent was concerned, the plaintiff was not entitled to recover any additional rent for excess area. On appeal by the plaintiff landlord, the decision of the trial Court was reversed by the learned District Judge; the plaintiff's claim as made in the suit was allowed, it being held that the plaintiff was entitled to additional rent for increase in area at the rate of Rs. 1-4-0 per bigha, the highest rate of rent payable for surrounding lands, in terms of the contract embodied in the kabuliat of the year 1295 B.S., on which the plaintiff's claim in suit was based. There was a further appeal to this Court by the defendants in the suit, and it would appear that in that appeal decided by our learned brother Jack, J., the questions decided by the District Judge in the lower appellate Court were not even attempted to be raised. In the appeal to this Court, was raised for the first time, the question which was not even suggested in the written statement filed by the defendants in the suit, that the terms of the kabuliat of the year 1295 B.S. in regard to payment of rent at the rate of Rs. 1-4-0 per bigha, contravened the provisions of Section 29, Ben. Ten. Act, and were not enforceable under the law; the decision of the District Judge in the Court of appeal below was therefore erroneous. The position that the question was raised in second appeal for the first time was mentioned by our learned brother, Jack, J., but the learned Judge proceeded to give his decision on the same.
3. It was held that the suit was not really one for enhancement of rent: it was a suit for adjustment of rent in terms of the contract entered into by the tenant at the time the tenancy was admittedly created by the kabuliat of the year 1295 B.S., and the plaintiff was therefore entitled to recover rent at the rate of Rs. 1-4-0 per bigha as claimed in the suit. The appeal now before us was directed against the decision of our learned brother, Jack, J.; and the question raised in the appeal was that granting a decree at the rate of Rs. 1-4-0 per bigha was in contravention of Section 29, Ben. Ten. Act. The contention thus raised cannot be given effect to. In the first place, a question which certainly involves decision on facts cannot be allowed to be raised in second appeal to this Court for the first time; and the decision of the question whether a stipulation as to payment of rent at the rate mentioned in a contract between the landlord and the tenant was enforceable or not must be dependent on various circumstances. It was incumbent upon the tenant to establish that the stipulation as to payment of rent at a certain rate was not enforceable, and one of the grounds on which such a stipulation could be allowed to be avoided was on the tenant's showing that the stipulation contained in the kabuliat was an attempt to override the provisions of Section 29, Ben. Ten. Act, and that the agreement embodied in the kabuliat was a mere device to evade the statute, prohibiting enhancement of rent, so as to exceed by more than two annas in the rupee, the rent previously payable by an occupancy raiyat. The appeal must fail on this ground alone.
4. A part, however, from the position indicated above, we see no reason to differ from the conclusion arrived at by Jack, J., based upon an interpretation of the kabuliat of the year 1295 B.S., on which the plaintiff's claim for rent was based, taking the document, as it stands, as a whole. As has been observed by our learned brother, considering the terms of the kabuliat, it could not be said that there was any attempt to evade the provisions of the Bengal Tenancy Act, and that the case before the Court was not one of enhancement of rent, but of adjustment of rent in accordance with the terms of a valid contract. The appeal is dismissed with costs.