1. I am of opinion that the decision complained of in this appeal is correct. The tenant holds under a kabuliyat executed in 1905. An argument has been advanced to suggest that the contract embodied in this kabuliyat was void because there is nothing to show that there any consideration passed. I am not prepared to entertain this contention at this stage because the specific grounds upon which the kabuliyat was challenged in the Courts below were grounds to the effect that it was not genuine and also in the alternative, that it was executed by the defendants without knowledge of its contents, grounds which have been overruled by both the Courts below. The kabuliyat therefore must be treated as embodying the binding contract between the parties. That being the position, the other facts of the case have got to be examined in order to deal with the other arguments that have been addressed to me on behalf of the appellant. The tenancy concerned in the present case is a very old one. The trial Court found that it has been in existence for three or four generations. This finding has, to a certain extent, been modified, by the Subordinate Judge. Although the Subordinate Judge was not able to agree with the trial Court in finding as a fact that the tenancy has been in existence for three or four generations, he has still upheld the view that it has not its origin in the kabuliyat in 1905 but that it has been in existence from a long time before.
2. It may be conceded also, as found by the trial Court-a finding which has not been upset or touched by the Subordinate Judge-that the land comprised in the kabuliyat had all along constituted the lands of this tenancy. As regards measurement, it has been found by both the Courts below that although the plaintiff's case was that at the time when the kabuliyat was taken there was a measurement of the lands, the materials that have been adduced in support of that allegation are not sufficient for coming to an affirmative finding in plaintiff's favour. It must be accepted as being the true position that at the time when the kabuliyat was executed or for the matter of that at any time before there was no measurement in respect of the lands. It may also be conceded, because there is no evidence to the contrary, that the tenant has at any time over-stepped the boundaries of the lands which originally constituted the tenancy and there is nothing to show that there has been any encroachment of the khas lands of the landlords by the tenants or that land had accreted to the holding in any other way so as to be regarded as additional lands which have been added to the tenancy in some way or other. These being the facts, we have got to see whether the decree for additional rent on the ground of excess area can be justified or not. I am prepared to concede that the facts which have been found now would not sustain such a decree if that decree is to be made on the footing of Section 52, Ben. Ten. Act. That section contemplates that there must be an addition of land to the original tenancy. But I am clearly of opinion that in view of the contract the parties as contained in the kabuliyat of 1905 the decree for additional rent that has been made by the Subordinate Judge, is amply supported. In the kabuliyat a certain area is mentioned and a certain rent is also mentioned as the rent for the area. Then there is a stipulation, which is of very great importance, that if at any time the lands are measured with a certain standard of measurement and it is found on such measurement that there is any quantity of land either more or less than the area stated, the tenants will have to pay additional rent or will get abatement of rent as the case may be. It has been argued that not much importance should be placed upon a stipulation of this character because if all the lands which were covered by the kabuliyat at the time when it was executed had really been assessed to rent and the rental that was mentioned in the kabuliyat was a rental fixed for all those lands, a stipulation of this character would only be a sort of a colourable devise to get round the provisions of Section 29, Ben. Ten Act. That undoubtedly is so. But in order to establish that position there must be some material on the record which would suggest that the rent that was mentioned in the kabuliyat was a rent fixed for all the lands of the tenancy irrespective of the figures that are given in the kabuliyat as regards the area of those lands. One indication in support of that position would be afforded by proof of the fact that the same rent had been paid for this tenancy by the tenant even before the execution of the kabuliyat. With regard to this matter there is absolutely no evidence. Therefore it cannot he said for a moment that there is anything here to suggest that the intention of this stipulation, to which I have referred, was to get round the provisions of Section 29, Ben. Ten. Act.
3. On the other hand, the kabuliyat was only for a period of three years and that also suggests that what was intended by the parties was that the lands which were then considered to be as being of a particular area were on that footing assessed to a certain rent but the parties agreed that if and when in future the lands would be measured, their exact area would be ascertained and the rent would be adjusted either by increasing or diminishing it as the case may be. I am clearly of opinion that the stipulation of this character is a good stipulation and on the strength of it alone the plaintiff would be entitled to get the decree which the learned Subordinate Judge had made in his favour. It has further been argued that the Courts below should have in view of the provisions of Sections 35 and 36, Ben. Ten. Act, made an order for progressive enhancement. So far as this matter is concerned, the enhancement under Section 30, Ben. Ten. Act that was made by the trial Court was not challenged by way of an appeal or a cross-appeal by the present appellants in the lower appellate Court. This argument, if at all, can therefore apply to such enhancement as the learned Subordinate Judge has made. But I find that the learned Subordinate Judge in assessing additional rent has made no enhancement whatsoever under the provisions of Section 30 of the Act. He has made a decree for additional rent for the excess area at the old rate. In these circumstances this contention in my opinion cannot possibly be given effect to. The result is that the appeal fails and must be dismissed with costs.