1. This is an appeal by the tenant defendants in a proceeding under Section 105 of the Bengal Tenancy Act instituted by the plaintiffs respondents for settlement of fair and equitable rent of a tenure. The tenancy is recorded as Kayemi Mokarari in the record of rights. The tenants consequently contended that though rent could be assessed in respect of excess lands, the rate of rent could not be enhanced. This contention was overruled by the Assistant Settlement Officer who assessed fair and equitable rent on the basis of the assets. On appeal by the landlords and cross-appeal by the tenants, the Special Judge remanded the case for further enquiry under Order 41, Rule 25, Civil Procedure Code. Ultimately, the Special Judge varied the order of the primary Court in favour of the landlords. On the present appeal, the tenants have urged that the tenure was held at a fixed rate of rent and consequently fair and equitable rent could not be assessed. When the appeal was heard on the 7th July 1922, it transpired that the terms of the tenancy were set out in a lease, dated the 24th June 1864 which was not mentioned in the judgment of the Courts below. Thereupon the following questions were remitted to the Special Judge for investigation on such evidence as might be adduced by the parties:
(1) Whether the patta of the 12th Asar, 1271, corresponding to the 24th June 1864, is or is not genuine;
(2) Whether it relates to the lands of the tenure now under consideration;
(3) Whether it fixes the rates of rent (to be assessed on the different classes of land) in perpetuity;
(4) Whether the rights of the parties were affected by the compromise of the 25th January 1887 which was arrived at in the course of the suit instituted on the 27th July 1886.
2. The Special Judge has now returned the record together with the following findings supported by full statement of reasons:
(1) The patta is a genuine document;
(2) The patta relates to the tenure now under consideration;
(3) The patta fixes the rates of rent in perpetuity, though the aggregate rent may be readjusted from time to time on variation of the area;
(4) The Mokarari nature of the tenancy was not called in question in the compromise and was not affected thereby; but the provision in the patta that enhancement of rent for increase in area should be based on the existing classification of the land into thirteen classes was abandoned and a new classification of the land into fifteen classes was introduced.
3. The entire appeal has now been re-argued before us, and two substantial points have emerged for consideration, namely, first, does the patta fix in perpetuity the rates of rent to be assessed on the different classes of land; and, secondly, to what extent have the rights of the parties under patta been affected by the compromise of the 25th January 1887.
4. The determination of the first question depends upon the true construction of the patta which was in the following terms:
Mokarari Patta granted to Lal
Mohan Tanti and others,
dated the 24th June 1864.
Issued from Sherista
5. This Mokarari Patta is granted by Messrs. Robert Watson & Co. the Patni Zemindars of Perganah Bogri to Lal Mohon Tanti, Jitu Tanti, Bhairab Tanti, Kali Tanti, Krishna Tanti and Ramdhan Tanti of Bhatmoda, Pergana Bogri, the tenants of Mouzah Bhatmoda, Taraf Paschim, dated the 24th June 1864 corresponding to the 12th Asar 1271 B.S..Quantity of land...Rate...Amount of jama
6. As per map prepared in connection with the enquiry made in 1271 B.S. bounded on the east by the limits of mouzahs Karapara and Ashapur, on the south by the River Silabati, on the west by the Beota Khal and on the north by the patit land on the limit of mouza Pechamura. Within these boundaries the total quantity of 478 bighas and 7 cottas, 8 chittaks of land. Out of c) in the khas possession of the Sarkar is as follows:
Bigha. Cotta Chittaks.(torn) Included in khal ... 1 10 12Occupied by road ... 5 19 8Banjar (jungle) patit... 7 15 0Culturable patit ... 103 11 0PatherChatan ... 8 19 0Indigo plantation ... 80 5 8----------------------------- 208 0 12-----------------------------270 6 12
Out of this the area covered by the settlement taken by Anantaram Hadi in respect of 8 as. share is-
135 3 6---------------------Remaining land ... 135 3 6DETAILS.B. C. Ch. R. as. gs. R. as. gs.Water, sand 67 3 8 ,, 8 ,, 33 9 7 1/2Danga sand 1 17 0 ,, 7 ,, ,, 13 ,,Sandy danga 0 6 0 ,, 7 ,, ,, 2 2 1/2Dhanda 7 6 0 ,, 4 ,, 1 13 7 1/2Jhanja Danga. 0 18 8 ,, 5 ,, 3 6 10(torn) Recently cultivated 1 2 2 ,, 5 ,, ,, 5 10Berwa Danga 6 19 0 ,, 4 ,, 1 11 15Biri Danga 0 18 8 ,, 4 ,, ,, 3 12 1/2Garden 0 9 8 ,, 6 ,, ,, 2 17 1/2Homestead 4 3 12 ,, 6 ,, 1 8 10Tanks 3 2 0 ,, 4 ,, ,, 12 10Oush danga 5 15 8 ,, 8 ,, 2 14 5Culturable patit 25 1 0 ,, 5 ,, 7 13 5--------------------------------------------135 3 6 55 4 11 1/2B.S. 135 3 1 1/2 Rs. 55 4 11 1/2--------------------------------------------
7. Admitting the sum of rupees fifty-five annas four and gandas eleven and half as the annual rent of the total quantity of one hundred and thirty-five bighas three cottas and one and a half poas of land you have submitted a kabuliat. This mokrari patta is accordingly granted to you. Becoming Maliks of making that is, becoming entitled to make sale and gift; etc., you down to your sons, grandsons, etc., in succession shall continue to peacefully enjoy and possess on payment of the rent according to the demands prevalent in the Perganah without any enhancement or abatement of the rate of rent according to the different classes of lands. If you hold possession of any land in excess to what is mentioned in this patta and if any land be found upon measurement to be in excess, then you shall separately pay the rent thereof according to the rates of different classes of land; and if the area of the land be found to be less, you shall get abatement of rent under a settlement at the aforesaid rates. The rates of rent according to classes will in fact, never be enhanced or abated. Keeping intact the limits and boundaries of the aforesaid Mouza and holding the land as jote and letting out the same as jote you shall continue to peacefully enjoy and possess down to your sons and grandsons in succession as the Maliks. You shall not harbour any wicked persons and bad characters within the aforesaid mouza. If you do so, you shall be answerable for the disturbance created by them. Finis. The 12th Asar 1271 corresponding to the 24fch June 1864.'
8. The patta, we observe, is described as Mokarari. This unquestionably implies fixity of rent. Reference may be made to the decision in Ram Narain v. Chota Nagpur Banking Association  43 Cal. 331, wherein an appendix will be found definitions of the terms Mokarari collected from various authorities. These show that the term Mokarari implies fixity of rent, as was ruled in the cases of Mahanand Sahai v. Sayedunissa  8 C.L.J. 525, Gayratulla v. Girish Chandra  12 C.W.N. 175, and Raja Rishikesh Law v. Satish Chandra A.I.R. 1922 Cal. 123.
9. We further notice that the patta provides that the lessee is to hold 'down to your sons, grandsons, etc,' which makes the tenure Mourasi Mokarari. This clearly does not tend to assist the contention of the landlords.
10. We note finally that the lease provides that excess lands found upon measurement would be assessed not at the customary rate, but according to the rates for different classes as fixed in the lease. The parties undoubtedly contemplated the possibility of accretion, as the tenure was bound on the south by a river and on the west by a khal. Such accretion might take place any length of time after the grant of the lease, and it is inexplicable how the provision that the new land, whenever it might appear, would be assessable at the rates prescribed in the lease can be reconciled with the theory that the rates were intended to be liable to enhancement at the instance of the landlord. Nor can such a theory be reconciled with the provision that 'the rates of rent according to classes will in fact never be enhanced or abated.' The decision of this Court in Amur Nath v. Rishikesh Laha  35 C.L.J. 138 furnishes a parallel to the present case. In that case the rent was fixed at the rate of two annas per bigha in 1866; on the discovery of additional lands in the possession of tenants, the excess area was assessed at two annas per bigha in 1881, and finally it was agreed that if thereafter at any period further excess lands should be discovered in the possession of the tenants, the excess area would be liable to be assessed at the rate of two annas per bigha. It was ruled that the rate of rent was fixed in perpetuity at two annas per bigha. Reference was made to the judgment of this Court in Robert Watson Co. v. Radha Nath Singh  1 C.L.J. 572, where the ear. Her decisions of the Judicial Committee on the subject were reviewed. Reference was also made to the decision of the Judicial Committee in Port Canning and Land Improvement Co. v. Katyayani A.I.R. 1919 P.C. 42 which affirmed the decision of this Court in Katyayani v. Port Canning Land Improvement Co.  19 C.W.N. 56. We are consequently of opinion) that the tenants have established, as required by the decision of the Judicial Committee in Bamasoondery v. Radhika  13 M.I.A. 248, that their landlords have, by the grant of the patta, preeluded themselves from exercising the right vested in a zemindar, holding under the permanent settlement Ito raise, from time to time, the rents, according to the parganah or current irates, of all the rent paying lands within his zemindari. It need not be disputed that mere forbearance on the part of a landlord does not justify the inference that the tenure is not enhanceable; Jagabandhu v. Magnamoyi  44 Cal. 555; Guru Charan v. Sarab Ali  30 C.L.J. 9 but no question of presumption arises where, as here, the terms of the contract have been reduced to writing. We may add that we have been pressed with the decision in Bam Kumar Singh v, Robert Watson & Co.  9 C.W.N. 334, and Surja Prasad v. Midnapur Zamindari Co.  38 C.L.J. 369. The decisions do not purport to formulate any general principles which can control the construction of the contract of tenancy now in suit. We may state, however, that on examination of the records, we have satisfied ourselves that there are substantial differences between the patta in. this case and the corresponding documents which were placed before the Court in those litigations. Those tenancies were not described as Mokarari, nor was there any clause for fixity of rent. The only feature common to the present case and the two relied upon by the respondents is that the rent for excess land is made assessable at the same rate as the original land. This, by itself, does not justify the inference that because those tenancies were held enhance able the same character must be attributed to the present tenancy. We feel no doubt that the Special Judge has correctly held on remand that the patta in this case fixes in perpetuity the rates of rent to be assessed on the different classes of land.
11. The determination of the second question depends upon the true construction of the compromise of the 25th January, 1887. We are of opinion that the Special Judge has correctly stated its effect. The Mokarari nature of the tenancy was not at all called in question in the compromise which was arrived at in the course of the suit instituted on the 27th July, 1886. The nature of the tenancy consequently remained unaffected. The classification of the lands was, however, altered. In the patta, there are two classes on eight annas, two classes on seven annas, two classes on six annas, three classes on five annas and four classes on four annas. In the compromise petition there are three classes on eight annas, one class on seven annas, five classes on seven annas, five classes on six annas one class on five annas and five classes on four annas. To this extent and no further the parties modified the original contract. The contention of the landlords that the original contract of tenancy dated the 24th June 1864, has been completely superseded by the compromise of the 25th January 1887 is manifestly untenable.
12. The result is that this appeal is allowed and the decree of the Special Judge set aside. The case will be remitted to the Court of first instance in order that rent may be assessed on the disputed tenure on the following basis the rates of rent to be assessed on the different classes of land will be deemed to have been fixed in perpetuity by the patta of the 24th June 1864, but the lands will be classified on the lines of the compromise of the 25th January 1887.
13. The appellants are entitled to their costs in all the Courts including the costs of the enquiry by the Special Judge on remand. The respondents will, however, retain the costs of the day's hearing assessed at one gold mohur as directed in our order of remand, dated the 7th July 1922; we assess the hearing fee in this Court at five gold mohurs.