1. This is an appeal by the defendants against a decision of the District Judge of Murshidabad, affirming a decision of the Assistant Settlement Officer of Rajshahi. The plaintiff, the landlord, claimed enhancement of rent. Defendants pleaded that the jama was mourashi mokarari and that therefore there could be no enhancement Both the Courts below have found that the jama was created after the Permanent settlement, The lower Appellate Court seems to have thought that once this was established, the fact that no presumption therefore arose under Section 50 of the Tenancy Act disposed of the case. In our opinion, this is not so. It is true that even if the tenure had been held for a long period at the same rate of rent), no 'presumption as to its permanency could arise, if, as has been found, the tenure was created alter the permanent settlement. But even so, it is open to the defendants who are sued for enhancement [of rent to establish on the evidence that [there was a contract that the rent of the tenure should not be enhanced. Unfortunately, the lower Appellate Court has not found whether or not any such con-tract existed; and the matter will accordingly go back to the Judge in the Court below in order that he may arrive at a finding on the evidence, both documentary and oral, in the suit as to whether there was any arrangement or contract between the parties that the rent of this holding should not be enhanced. The same point arose in the case of Nityanand Pal v. Nand Kumar Chowdhury  13 C.L.J. 415. The decree of the lower Appellate Court is accordingly reversed and the matter must go back in order that the case may be considered from the point of view indicated in this judgment. Costs of this appeal and of the remand will abide the decision by the lower Appellate Court who will finally dispose of the case.
2. I agree.