1. In this case the landlord, plaintiff in the five rent suits, has appealed from the decision of my learned brother M.C. Ghose, J., sitting in second appeal. The lands in question are in the Sunderbans and it appears that in 1900 the Government gave a reclaiming lease to the appellant for 40 years at a progressive rent. It was to be rent free for 15 years, after 1915 and until 1920 the landlord was to pay the Government 2 annas per bigha and from 1921 until the end of the term 1940 the landlord was to pay the Government 4 annas per bigha. Now, the landlord settled the land or part of the land which he had taken with the defendants among others in 1907 and as regards the five cases before us in all those except the one with which Letters Patent Appeal No. 18 is concerned, there are kabuliyats. It appears that the tenants may have been inducted before the date of the kabuliyats but the kabuliyats were taken. It is contended for the landlord that the meaning of Clause 8 of the kabuliyat is that a certain amount in each case is to be paid, to begin with, as rent, and that the stipulation is that when the time comes and the landlord has to pay to Government 2 annas or 4 annas, as the case may be, the tenants will pay that in addition to the rent first mentioned. It is contended on the other hand by Mr. Bose for the respondents that the clause has no such meaning but that it is directed to possible events that might happen on the determination of the landlord's lease, that is to say, after 1940.
2. As regards that I am satisfied that the construction which has been put upon this clause by all the Courts is right and that the only reasonable meaning is that as and when the landlord becomes liable to pay the Government 2 annas or 4 annas per bigha the proportionate amount shall be added to the amount of rent mentioned above, the result being that the amount fixed in the kabuliyat is always to go to the landlord as profit. On that assumption the matter has been discussed and the question is whether the landlord can now claim to get an addition to the rent mentioned (in each case 4 annas per bigha) from the tenant. It is contended on the part of the tenants that Section 29, Bengal Tenancy Act, interferes with the contract and presents the landlord from making this claim and the first question which we have to consider is whether Section 29 applies in this case at all. Now, the facts are that at the date of the contracts for the tenancies these defendants were not occupancy raiyats at all; that it was not until after 1912 that these lands were declared to be a village, and these tenants came to begin to acquire occupancy rights; and it was not until later, 1925, when retrospective effect was given to what took place in 1912 that the date on which they can be deemed to be occupancy raiyats was fixed as 1919. So that we may take the facts of this case to be that until 1919 these defendants were not occupancy raiyats but that by virtue of retrospective legislation they must now be treated as having been occupancy raiyats from 1919. It is clear enough therefore that Section 29 had no bearing upon the matter prior to 1919. In 1916 therefore the contract for 2 annas more was a perfectly good contract so far as Section 29 is concerned and the amount payable by the tenant under the contract was 2 annas in addition to the sum mentioned in the kabuliyat. Now to that two objections have been taken. First of all, it is said that in point of fact there is a dispute whether 2 annas was exacted when it became due in 1918. To that, it seems to me, the obvious answer is that it does not matter whether it was exacted or not. So far as the tenants who have given kabuliyats are concerned it became payable and it was the rent which they owed to the landlord in that year.
3. The next point is this: There is a finding of fact from the final Court of fact that the extra two annas was exacted in 1916. The learned Judge in this Court has set aside that finding on the ground that it is contrary to the landlord's own statement in his plaints, he being under the impression that in these plaints or in some of them there is an express statement that the landlord did not receive this rent from the year 1916. We have had these plaints examined and it appears that the learned Judge was misinformed. In one case there is a clear and satisfactory statement, that is in Suit No. 655, that two annas was exacted at or about this time. In others there is no explicit statement to that effect because the pleader drafting the plaint goes straight to the later position when 4 annas became payable but in no case is there anything in the body of the plaint to show that the amount of 2 annas extra was not exacted in 1916. The result is that in 1916 the rent due was 2 annas more than the lump sum and that was the position when in 1919 these tenants became occupancy raiyats. Is there therefore any reason either under Section 29, Bengal Tenancy Act, or otherwise why in 1921 or thereabout the tenant should not be made liable to pay 2 annas more, the landlord having to pay 2 annas more to the Government? Now the only clause in Section 29 which is said to bar this is Clause (b) which prevents the rent being enhanced by contract by more than 2 annas in the rupee. If we take the basis of the rent as it existed in 1919 and add 2 annas per bigha, it is clear enough that the limit put by Clause (b) is not exceeded at all. In my judgment Section 29 has no application whatever to these cases. But assuming that it has application to these cases as in 1919, the only clause which is called in aid of the defendants is Clause (b) and the claim of the landlord does not conflict with Clause (b). As regards Clause (c) what the statute deals with is not a second contract by an occupancy raiyat to enhance his rent. What it says is this:
The rent fixed by the contract shall not be liable to enhancement during the term of 15 years.
4. It does not prevent a man from making another contract but prevents the landlord from insisting upon any further enhancement. That is the meaning of the clause. For these reasons I am of opinion that in these cases other than the Letters Patent appeal No. 18 the Letters Patent Appeals should be allowed with costs and the decision of the learned Subordinate Judge restored. As regards Letters Patent Appeal No. 18 the position is most unsatisfactory as it appears from the record. It appears that the plaintiff put forward a kabuliyat and gave some evidence to show that this kabuliyat was entered into by the tenant or his predecessor. The Munsif however was not apparently satisfied with that evidence though he does not mention the matter in his judgment but merely says that he is not satisfied that it is proved, that this tenant paid the rent he is alleged to have paid in 1916. He does not seem to deal with the question at all beyond that. When the cases came before the lower appellate Court the lower appellate Court dealt with them on the footing that it was admitted that all the five tenants paid rents under kabuliyats. As regards this matter we have it further that the tenant himself was called into the witness-box and he said that he paid rent at the rate of Rs. 6-2-5 and this rent the Munsif decreed. It is just possible that there was some admission before the lower appellate Court but if so it has not been properly recorded. The learned Judge in this Court, did not think it fit to send the case back. So in that view this Letters Patent appeal is dismissed with costs.
5. I agree.