1. This appeal arises out of certain proceedings under Section 106 of the Bengal Tenancy Act. The landlord sued to enhance the rent of his tenant. His case was that the tenant was a settled raiyat and the rent was liable to enhancement. The main defence was that the tenant held the jama at a fixed rate of rent from the time of the Permanent Settlement and this rate was not liable to enhancement. There was a further contention of the defendant that Plot No. 135 was all high land and no part of it was water. The first Court allowed the application of the plaintiff. On appeal to the Special Judge the Special Judge found that the land was held at a fixed rate of rent and, therefore, was not liable to enhancement, and he varied the decision of the first Court to that extent.
2. The plaintiff has appealed to this Court. The learned advocate for the appellant first of all contends that if a person holds under a lease which is of later date than the Permanent Settlement then the presumption under Section 50 of the Bengal Tenancy Act does not apply. I cannot accede to this proposition. Section 50 provides that
Where a tenure-holder or raiyat and his predecessors -in-interest have held at a rent or rate of rent which has not been changed from the time of the Premanent Settlement, the rent or rats of rent shall not be liable to be increased except on the ground of an alteration in the area of the tenure or holding.
3. It would not seem to be material so far as this section is concerned whether there is one or a series of tenancies. It is sufficient for the purpose of that section that the rent or rate of rent at which the tenure-holder or the raiyat has held has not been changed since the time of the Permanent Settlement. The learned advocate for the appellant, Mr. Bose, has contended that the presumption which the learned Judge has found to arise under Section 50, Clause (2) that as the holding has been held at a uniform rate of rent for over 20 years before the date of the suit it has been hold at that rate of rent: since the time of the Permanent Settlement has been rebutted by the kabuliyat executed by the tenant in 1804. Ho would seem to contend that by this kabuliyat the raiyat undertook to pay rent at a different and higher rate of rent and hence there has been a new contract between the parties and this new contract rebuts the presumption which arises under Section 50 of the Bengal Tenancy Act.
4. A careful consideration, however, of this kabuliyat does not support the contention of Mr. Bose. It seems to me that what was intended by this kabuliyat is that if the lands are measured and on measurement the tenant is found to be in possession of more land than what he is now paying rent for he will pay rent for that excess land at the higher sate paid by the neighbouring tenants. The kabuliyat, therefore, does not alter, nor does it propose to alter the rent or rate of rent which was being paid for this holding.
5. The next argument put forward by the learned advocate would seem to be that at the time of the splitting up of this tenancy into one rupee and Rs. 2-8-0 jamas as, has been found by the learned Special Judge a portion came to be held under a different landlord. Even if it did I admit I cannot see what difference it makes. Section 50 of the Tenancy Act is entirely silent as to whether the land is held under the same landlord or different landlords. It is sufficient for the purpose of the section that it has been at the same rent or rate of rent from the time of the Permanent Settlement.
6. The result is that the appeal must fail and is dismissed with costs.
7. I agree.