W. Comer Petheram, Kt., C.J.
1. This was a suit instituted in the Court of the Munsif of Sasseram by a zemindar to recover the sum of Rs. 246-4 from a raiyat on account of the rent of his holding, which the plaintiff stated the defendant held under a registered kabuliyat, dated May 10th, 1885, at an annual rental of Rs. 206. The defence set up in the statement was that the alleged kabuliyat was a forgery, and that the land held by the defendant was held by him as ancestral guzashta khasht at a rental of Rs. 153-1-6. Both the lower Courts have found that the kabuliyat is genuine, and was executed by the defendant, and that question is not disputed now; but it was argued before the Munsif and the District Judge that the entire rent cannot be enforced, because the kabuliyat contravenes the provisions of Section 29 of the Bengal Tenancy Act, inasmuch as, if it is proved that the rent payable by the defendant for the land was Rs. 153-1-6 prior to the 10th of May 1885, the effect of the kabuliyat of that date was to enhance the rent by more than 12i per cent., and that the agreement contained in it is only binding on the tenant to the extent allowed by law. Both the lower Courts have accepted this view, and have given judgment for the plaintiff for an amount calculated at an annual rental of Rs. 153-1-6 plus 12 1/2 per cent., or a total rental of Rs. 172-3-9. The plaintiff has appealed to this Court, and contends that when the case is understood, the agreement embodied in the kabuliyat is not an agreement to enhance within the meaning of Section 29, but is one to pay a rental agreed upon by the parties in settlement of a dispute between them as to what had been in fact the rental of the land held by the defendant within the plaintiff's zemindari. By consent of the parties the case has been treated as a regular appeal, and the whole of the evidence which was taken before the Munsif is before us. It appears that prior to the year 1886 there had existed disputes between the parties with reference to the rent of this holding, and on the 29th of June 1886 the present plaintiff filed a plaint against the present defendant to recover rent for the holding calculated as bhowli rent, or as the value of a share of the produce. The defendant defended the suit on the ground that the tenure was not a bhowli, but nagdi tenure, that the rental was Rs. 153-1-6, and he paid money into Court on the basis of that rental.
2. That case was decided in first appeal by Mr. Tweedie, the then District Judge of Shahabad, who has written a judgment in a somewhat eccentric and ambiguous form, and the fact that the form of the judgment has caused to a great extent the present litigation and expense should I think, be a warning to Judges to make their judgments as clear as possible, and not to include in them matters which are not before them for decision.
3. After stating that he does not believe the evidence for the plaintiff, but that he does that of the defendant, he says: 'For reasons given order for decree, it is found and decreed--
I.--That Z (the tenant) is not liable to pay rent in kind or by money equivalent of kind for the jote held by him (issue No. 2).
II.--That Z is liable to pay cash rent only, namely Y (the amount found due) for the whole jote as held by him (issue No. 5).
III.--That the appeal be, and the same hereby is decreed, and that plaintiff's suit be, and the same is hereby dismissed; that plaintiff shall pay the defendant's costs in both Courts and interest thereon at 6 per cent, per annum, to run from this date to realization.
IV.--That, notwithstanding the dismissal of the suit as laid and by leave of the defendant, the plaintiff shall be at liberty, if he thinks fit, to realize the cash rent (Y) for the period covered by this suit by withdrawing so much thereof as is in deposit, and by ordinary execution with respect to the over-plus. Interest on that portion which is not deposited is allowed, as from this date to realization, at 6 per cent, per annum.
4. This judgment was appealed to this Court in second appeal, and the appeal was dismissed.
5. Afterwards the parties came to settlement, under which the plaintiff gave the defendant a receipt in full for all rent then due, and the defendant gave the plaintiff a receipt in full for all costs. No money passed, and I gather that the money which had been deposited in Court, and which is mentioned in Mr. Tweedie's judgment, was taken out by the defendant, to whom it would belong under the settlement, and as part of the settlement the defendant executed the kabuliyat set up by the plaintiff in the present action, and the defendants have remained in undisputed possession ever since. Both the lower Courts in the present case have based their judgments on the assumption that the defendant's rental was by Mr. Tweedie's decree decreed to be Rs. 153-1-6, and have considered that no settlement would be binding on the defendant by which he agreed to pay a higher rent than that sum plus 12 1/2 per cent.
6. I am unable to agree in this view. The only portion of the document written by Mr. Tweedie which had any binding force between the parties was that portion which dismissed the suit with costs. The amount of nagdi rent was never in issue and was never discussed by the plaintiff, nor was the Judge ever called upon to adjudicate upon it, and it is evident that one of the considerations which induced defendant to agree to the settlement was that the plaintiff was threatening further litigation to obtain a larger nagdi rent than that admitted by the defendant. There is no evidence on the record, except that afforded by Mr. Tweedie's judgment, that the rental ever was Rs. 153-1-6, and having regard to the fact that the written statement does not disclose any such defence as that now set up, I do not think there is any reason for taking fresh evidence or for remanding the case, and consequently I do not think it is proved here that the rental decreed by the kabuliyat exceeded the old rental by more than 12i per cent., and it is I think apparent that the arrangement of May 10th, 1885, was come to, not as an enhancement of an existing rent, but as a settlement of a dispute as to the amount and character of the rent, and is not within the provisions of Section 29 at all. I think the  appeal should be decreed, and the judgment and decree amended by increasing the amount to that claimed by the plaintiff in his plaint, that is, for a sum calculated at a rental of Rs. 206 per annum.
7. If this appeal has to be decided upon the issues which were raised by the written statement of the defendant, there can be no doubt that the decree of the Court below cannot stand. That Court, however, having allowed a new question to be raised at the final hearing of the suit, and upon which question the judgment is against the plaintiff, the doubt that at one time arose in my mind was whether we could rightly decide this appeal without sending down an issue for trial to the Court below. The question that was raised at the final hearing was whether the kabuliyat executed by the defendant fell within the purview of Clause 2, Section 29 of the Bengal Tenancy Act, and whether the plaintiff was entitled to recover any increased rent over and above 2 annas in the rupee upon what was the old jama of the defendant. Now this question, although from one point of view a question of law, was really a mixed question of fact and law; for before it could be decided, it had to be found what was the old rent of the defendant's holding, and what was the true consideration for the kabuliyat in question. These were matters which could only be adjudicated upon the facts proved in the case.
8. No doubt, in the case that was tried by Mr. Tweedie there was an issue raised as to what the amount of the nagdi jama, which the defendant set up, was, and that learned Judge did decide the issue in favour of the defendant; and a declaration was entered in the decree that he made in the suit to the effect that the amount of the jama was as the defendant alleged. But at the same time it must be borne in mind that another portion of Mr. Tweedie's decree was that the suit be dismissed. If this decree of Mr. Tweedie stood alone, I should have been inclined to hold that it must be taken that the old jama was Rs. 153 odd; and that the rent fixed by the kabuliyat was in contravention of Section 29. But then let us see what does the kabuliyat itself say. After referring to the proceedings in the Court of First Instance in the previous suit, the document says as follows: 'That I, the declarant, preferred against the decree of the said Judge an appeal to the Court of the Judge of District Shahabad, and a decree was passed by the Court of the District Judge in favour of me, the declarant, under nagdi system, that the said proprietor preferred an appeal to the High Court, Calcutta, against the decree of the Judge, and the High Court also upheld the decree of the Judge in favour of me, the declarant, in respect of the said land as nagdi; that now I, the declarant, of my own will and accord, and in consideration of the real state of things take (from) the said proprietor the aforesaid 66 bighas 2 cottahs of lands as per four boundaries given below, together with dih and kharry and all rights and interests thereto attached in patooa khet (land held in usufructuary lease) at an annual jama of Rs. 194-4-0 and Rs. 5-14-0 as road cess and public works cess and Rs. 5-14-0 as putwari's neg, in all Company's Rs. 206, for a term of nine years from 1295 to 1303 Fusli'. And lower down, the document says--'that the said kashtkar should keep the aforesaid lands under his possession and occupation, enjoy the proceeds of the said lands year by year, pay the said defined sum to the malik year by year, without objection on the scores of drought, inundation and destruction by hailstones, on receipts and acquittances, and pay the said defined sum to the proprietor more or less according as the land may on measurement be found more or less. Should the defined sum payable by me, the kashtkar, fall into arrears, the said proprietor shall have the power to realize the same from me, the declarant, by institution of suit, or in any other way possible, with costs and interests.' It will be observed that the kabuliyat nowhere mentions the old jama to be Rs. 153 odd, as is now contended for by the defendant. It simply says that a decree was passed for the land as nagdi; and it then says that in consideration of the real state of things 'the tenant agrees to take a lease for nine years at the jama of Rs. 1.94-4-0. This shows that, notwithstanding the decision of Mr. Tweedie, there was a contest between the parties as to what the true jama was; and that, regard being had to the 'true state of things' (as the document itself says), the tenant settled all the differences that then existed with the landlord, and entered into the agreement embodied in the kabuliyat. I do not think it is really open to him now to go behind the said agreement; and it would not be right in the circumstances to remand the case to the lower Court for the purpose of determining upon evidence the question what was the old jama, and whether the rent that was agreed to be paid under the kabuliyat was an enhancement in violation of the terms of Section 29 of the Bengal Tenancy Act.
9. In this view of the matter, 1 agree with the Chief Justice in allowing this appeal, and that with costs.