1. The one substantial question raised in this appeal is whether a particular stipulation in the kabuliyat rebuts the presumption of fixity of rent raised under Section 50, Bengal Tenancy Act. The Courts below have found that the defendant has succeeded in proving uniform payment of rent for more than 20 years, that the kabuliyat executed in 1868 was a confirmatory settlement of the holding held by the predecessors of the defendant from before at a uniform rent of Rs. 65, that since the execution of the kabuliyat there has been no variation in the rent and that, therefore, this kabuliyut or the stipulation contained in it did not affect the presumption raised under Section 50, Bengal Tenancy Act. The kabuliyat recites that the jama was held by the tenant from before at a rent of Rs. 65 and the settlement was taken from the landlord in respect of the land covered by the kabuliyat at the same jama of Rs. 65. Then there is a stipulation to the effect that if in future on measurement any excess or diminution in area is established the tenant will pay rent according to the prevailing rate current in the neighbourhood.' It is argued that this stipulation rebuts the presumption raised under Section 50 of the Bengal Tenancy Act: and for this view reliance has been placed on the cafes of Upendra Nath Ghose v. Gopi Charan Saha  22 C.W.N. 321, Upendra Nath Ghose v. Dwarkanath Biswas  22 C.W.N. 322 and Sarat Chandra De v. Taraprasanna Bhattacharyya A.I.R. 1923 Cal. 141. The last case follows the case in Upendra Nath Ghose v. Dwarkanath Biswas  22 C. W. N. 322 which is an authority for the proposition that where a tenant stipulates that he would pay enhanced rate according to the. pargana rate the kabuliyat may be considered either as new contract under which the tenant agreed to pay enhanced rent or as a contract containing recitals of the incidents of the tenancy which was in existence from before. The other terms of the kabuliyat are not clear as to whether it was a conformatory kabuliyat or a kabuliyat executed by the tenant who was inducted into the land under it. It is not necessary for me to say more with regard to that case; but if proper occasion arises I may have something to say on the question as to the generality of the language employed in it. Section 50, Clause (1) says that where a tenure or holding is held at a rent, which has not been changed from the time of the Permanent Settlement, it shall not be liable to be increased. Clause (2) gives only one of the modes of proving that a holding was held at a uniform rent from the time of the Permanent Settlement; and if such proof is adduced it will give rise to the presumption of fixity of rent. If the tenant succeeds in proving, that he has paid rent at the same rate for a period of 20 years then the presumption is that he has held it at that rate from the time of the Permanent Settlement. If any tenant since the Permanent Settlement comes into possession of the land and stipulates that) ho would pay enhanced rent, I fail to see how such stipulation can affect or rebut the presumption raised as to the uniform payment of rent, from the time of the Permanent Settlement. Such a stipulation by the tenant may be enforced either as a new contract or it may be used as a piece of evidence to show that the holding was not held an the same rent from the time of the Permanent Settlement. The facts of the case of Sarat Chandra Dey v. Taraprasanna Bhattacharyya A.I.R. 1923 Cal. 141 to which my learned brother was a party are very different from the present case. There the kabuliyat was for a term and is not clear from the report of the case that the kabuliyat; was one creating a tenancy or was evidence that the holding was not held at the same rent from the time of the Permanent Settlement. But the leaned Judges in that case interpreted that kabuliyat and observed as follows: 'It cannot be disputed that this is the correct interpretation of the terms of the cannot between the parties, and the document so interpreted rebuts the presumption mentioned in Section 50 ' It seems that their Lordships used the particular document in that case as a piece of evidence which was sufficient to rebut the presumption under Section 50. The case of Upendranath Ghose v Dwarkanath Biswas  22 C. W. N. 322 was considered in a well considered judgment in the case of Abhoy Sankar Mazumdar v. Rajani Mandal  29 C.L.J. 371, where Richardson, J., observes that under Clause (1) of Section 50 if the rent has not in fact been changed from the time of the permanent Settlement then it shall not be liable to be increased, If an instrument is subsequently executed forty or fifty years later she mere fact that the rent is expressed to be variable will by itself make no difference. I fully agree in the view expressed therein. In the present case, however the facts are different. The tenant by the kabuliyat of 1868 covenaned that if alter measurement land is found to be in excess he will pay rent for the same according to the prevailing rate. This stipulation is in perfect accord with Section 50 (1) which says that the rent at which a holding is held from the time of the Permanent Settlement shall not a liable to be increased except on the ground of alteration in the area of the holding. This condition, therefore, can in no sense be said to rebut the presumption raised under Section 50. In this connexion I should like to observe that a kabuiyat containing a stipulation like agreeing to pay enhanced rent in future is only a piece of evidence which can be taken into consideration to show that the tenancy did not exist from the time of the Permanent Settlement or that it was not held at an invariable rent from that time. It is after all a piece of evidence the effect of which can be well judged by a Court of fact and in my judgment it is not proper for a Court of law to lay down whether a piece of evidence is or is not sufficient to rebut the presumption raised under Section 60. In this cafe the learned Special Judge considered this kabuliyat with all its terms and has come to the conclusion on a consideration of the evidence that even if it were a stipulation to allow enhancement it will not affect the defendant's immunity, if in fact he establishes a presumption that he has held at a rate unchanged since the Permanent Settlement. That I take to be a finding of fact which we cannot disturb in a second appeal. This objection, therefore, fails.
2. There is one other point which was suggested, namely, that the Courts below should' not have allowed deduction of 5 per cent. on account of closeness of measurement. I understand this has been the practice under the Settlement Rules framed by the Government and no authority has been placed before me to induce me to depart from this course. I may remark that it is found by the Courts below that there has been an in-crease of area held by the defendant which has been assessed at the rent found to be fair and equitable by the Special Judge.
3. In the result this appeal fails and is dismissed with costs one gold mohur.
4. I agree.