B.K. Mukherjea, J.
1. This is an appeal on behalf of the plaintiff, who is the purchaser of a patni tenure at a sale held under Regn. 8 of 1819, and arises out of a suit commenced by him for recovery of arrears of rent for the period 1338 to Ashar Kist of 1341 B.S. at the rate of Rs. 10 a year, in respect of a tenancy held by defendant 2 as an occupancy raiyat within the said patni. Defendant 1 has been impleaded on the ground that defendant 2 transferred to him the holding by a kobala dated 17th Baishak 1341 B.S.; there was a further claim for enhancement of rent under the provision of Section 30(b), Ben. Ten. Act. The defendants, besides raising a plea of payment so far as the rent due was concerned, contended in substance that the holding was a mokrari one, and the rent being fixed in perpetuity was not enhancible under Section 30(b), Ben. Ten. Act. The Court below disbelieved the story of payment but gave effect to the contention of the defendants that the tenancy was held at a fixed rent. The claim for arrears of rent was thus decreed in full, defendant 2 being made liable for the Ashar Kist of 1341 B.S. which fell due after his purchase, but the claim for enhancement of rent under Section 30(b), Ben. Ten. Act, was dismissed. It is against this part of the decree that the present second appeal has been preferred.
2. It is not disputed that defendant 2 got a putta from the previous patnidar on 31st January 1907 by which the rent of this holding was fixed in perpetuity. The controversy really centres round the point as to whether the putta is binding on the present plaintiff who has purchased the patni taluk free from all incumbrances under Section 11 of the Patni Regulation The Courts below have held against the plaintiff on the ground that defendant 2 was a khudkhast raiyat and the engagement relating to fixity of rent would come within the purview of the exception contained in Clause (iii) of Section 11 of Regn. 8 of 1819. The plaintiff therefore according to the Courts below is not competent to ignore the putta. Mr. Chakravorty who has appeared in support of the appeal has assailed the propriety of this view substantially on two grounds. He has contended in the first place that the grant of a mokrari right in an incumbrance within the meaning of S.11 of the Patni Regulation and the plaintiff has acquired the patni free from that encumbrance. The second contention is that the defendants do not come within the exception provided for in C1. (iii) of Section 11 of the Patni Regulation This contention is sought to be supported on three grounds: firstly that defendant 2 was never a khudkhast raiyat, and the assumption that he was so is not based on any evidence; secondly that the amendment to C1. (e) of Section 195, Ben. Ten. Act, which extends the definition of khudkhast raiyat by including occupancy raiyats, does not help the defendants, inasmuch as the amended Act came into force in February 1929, whereas the Patni sale took place in the year 1926. The third ground is that the 'engagement' referred in Clause (iii) of Section 11, Patni Regulation, could not include an engagement creating fixity of rent, as the concluding portions of the clause itself would show.
3. The first point does not really present any difficulty. In Gopendra Chandra Mitter v. Mokaddan Hossain (1894) 21 Cal 702 the suit was to cancel a mokrari tenure granted toy a previous patnidar. It was held by Ghose, J. that the mokrari lease was an incumbrance upon the Patni, but as in Section 11, Patni Regulation, a distinction was made between incumbrances by way of sale, gift or otherwise and the leases which were creative of an intermediate interest, the mokrari in question would not be an incumbrance within Clause (i) of Section 11 but would be a lease within Clause (ii). In that case the lease created an under, tenure between the patnidar and the actual cultivator and hence came under Clause (ii) of Section 11, and it may be said that there is a distinction between incumbrances and under-tenures in the Patni Regulation also, the former being destroyed by the sale itself, while the latter remain subsisting till they are actually annulled: Arun Chandra v. Sarojit : AIR1934Cal44 . When however no under tenure is created, but the cultivator himself is given a right of fixity of rent, the grant of Mokrari right is in my opinion an incumbrance within the meaning of Section 11 of C1. (i) of the Patni Regulation, and the right cannot subsist after the Patni sale, unless it comes within the exception provided for in C1. (iii) of Section 11. The term 'incumbrance' is not defined in the Patni Regulation and the instances of sale, gift, mortgage as given in Clause (i) are certainly not exhaustive: vide Maharaja Prodyot Kumar Tagore v. Gopi Krishna (1910) 37 Cal 322. According to the Encyclopedia of American and English law, an incumbrance is a
burden upon land, which is depreciative of its value such as a lien, easement, servitude, and which though adverse to the land holder does not conflict with his conveyance of the land in fee.
4. This grant of Mokrari right was in substance an assignment or parting of the right of increasing the rent, which the patnidar undoubtedly had, and to that extent has depreciated the value of the Patni. An additional burden was thus imposed upon the Patni which did not remain in the same state as it was created by the zamindar. An exactly similar view was taken in Nil Madhub v. Siboo Pal (1870) 13 WR 410 which turned upon Section 16 of Act 8 of 1860, the language of which is identical with that of Section 11 of the Patni Regulation. I hold therefore that this grant of mokrari right was an incumbrance, and that the purchaser would not be bound by it, unless the tenant could bring his case within the exception contained in C1. (iii) of Section (11).
5. Turning now to the second question, the first point for decision is as to whether the Courts below were right in assuming that the defendants were khudkhast raiyats within the meaning of Section 11, Clause (iii). It may be pointed out at the outset that the defendants nowhere made such a case in the written statement and there it was said simply that the defendants were mokrari raiyats who had acquired the right to hold the land at a fixed rent under the potta granted by the previous patnidar. In the deposition of defendant 1's son also, nothing is said about defendant 2 being a resident and hereditary cultivator, and the record of rights records him as a settled raiyat having mokrari rights under the potta. The Munsif did not come to any finding as to whether the defendants were khudkhast raiyats or not, but observed in his judgment that defendant 2 was a cultivator, and as such could have the advantage of Section 11,C1. (iii) of the Patni Regulation. The lower Appellate Court, it is true, remarked in the judgment that it could be contended that defendant 2 was not a resident and hereditary cultivator, but it does not appear that there was any admission on this point by the plaintiff at any stage of the suit. In my opinion the assumption of the Court of Appeal below that the defendants were khudkhast raiyats is not warranted by the pleadings of the parties and is unsupported by any evidence on the record. It cannot be said that a settled raiyat must necessarily be a khudkhast raiyat. The essential thing in a khudkhast raiyat is that he is a resident cultivator who holds land in the village in which he has his fixed residence: vide Field's Regulation Introduction Section 20. Even a non-resident cultivator can acquire the status of a settled raiyat by holding and cultivating lands in a village for a period of 12 years. I hold therefore that the defendants have neither alleged nor proved that they are resident and hereditary cultivators.
6. The next question is as to whether the defendants who are undoubtedly occupancy raiyats can claim the benefit of Section 11, C1. (iii) of the Patni Regulation by reason of the extended definition of the expression khudkhast raiyat given in the amended Section 195(e), Ben. Ten. Act. Section 195, C1. (e), Ben. Ten. Act, as it stood before, laid down that nothing in the Bengal Tenancy Act would affect any enactment relating to Patni tenure in so far as it relates to these tenures. By the amendment an exception is introduced to this effect that:
The expression khudkhast raiyat or resident and hereditary Cultivators in C1. (iii) of Section 11, Bengal Patni Taluk Regulation, shall be deemed to include all raiyats having a right of occupancy.
7. This amended section came into force in February 1929 whereas the patni sale in this case took place in the year 1926. The point for determination is as to whether the defendants can take advantage of the amended section or in other words is the amendment retrospective in its operation. In my judgment the answer should be in the negative. The amendment is certainly not introduced for the purpose of explaining an earlier statute in which case it can be said to relate back to the time when the prior statute was passed (vide Crais on Statute Law, Edn. 4, p. 341). It does not purport to explain what the Legislature intended by the expression khudkhast raiyat in the Patni Regulation, and in fact it is not an explanation attached to Section 11, Patni Regulation at all. Nor can it be said to be in the nature of a declaratory Act, where the presumption against construing it retrospectively is said to be inapplicable. The leading case on this point is the case in Attorney General v. Theobald (1890) 24 Q B D 557. There the Custom and Inland Revenue Act of 1889 had declared that with regard to the imposition of stamp duties upon personal property passing under voluntary settlement, the expression voluntary settlement would include marriage settlement although they had not been so regarded up till that time. It was held that the Act was applicable even with regard to marriage settlements where the property passed to the beneficiaries before the Act came into force. This is an instance of an extended definition given to an expression used in an earlier Act. The Legislature declared subsequently in which sense it used a particular expression in an earlier statute and consequently the declaration must act retrospectively and should be taken to be the meaning of the expression in the earlier statute. The same consideration does not apply to the present case.
8. As I have said above, the Legislature cannot be said to have defined the meaning of the expression khudkhast raiyat as used in the Patni Regulation. This extended meaning, if it relates back to the date of the Patni Regulation, would mean an anachronism, for though khudkhast raiyats could be said to have occupancy rights in a general sense, yet occupancy raiyat in the proper sense of the term was the creature of a later statute. It cannot be suggested also that the Legislature intended this declaration to be operative from the date of the Bengal Tenancy Act. The Legislature does not purport to declare the rights of occupancy raiyats by making this amendment. The amendment comes in by way of introducing an exception to the law as it stood before. It purports to make a change or alteration in the existing law, and there are no words used which would go to show that the amendment was meant to be retrospective in its operation. It is true that it was held in certain cases, even before this amendment was introduced, that raiyats who were not resident and hereditary cultivators but had acquired occupancy rights could not be ejected by the purchaser at a Patni sale: vide Rash Behari Mandal v. Hemanta Kumar Ghose : AIR1928Cal52 and Janaki Nath Nandi v. Amarendra Nath Biswas : AIR1933Cal490 . But that was not on the ground that the occupancy raiyats were included in the term khudkhast raiyat, but because they had protection under another Act independently of C1. (iii)of S.11, Patni Regulation. I think therefore that the appellant is right in his contention that the amended C1. (e) of Section 195, Bengal Tenancy Act, does not in any way help the defendants.
9. Having regard to the view that I have thus taken, it is not strictly speaking necessary, to decide the other point as how far an engagement relating to fixity of rent would be binding on the purchaser under the provision of C1. (iii) of Section 11, Patni Regulation, assuming for argument's sake that the defendants though occupancy raiyats can have the advantage of Section 195(e), Bengal Tenancy Act. My own view is that so far as fixity of rent is concerned, it was the policy of the Legislature not only in the Patni Regulation but also in subsequent Sale Laws and Rent Acts, to protect the raiyat against enhancement of rent by the purchaser, provided the fixity of rent was not the creature of a contract between the outgoing landlord and the raiyat but was created or sanctioned by law itself. In cases where rent was fixed not by statute but by contract, protection was given against eviction but not against enhancement of rent according to the law for the time being in force. An exception has been made in this respect only by the addition of C1. (ff) in Section 160, Bengal Tenancy Act, by the Amending Act of 1928.
10. At the time of the Patni Regulation, the only two classes of cultivating raiyats were the khudkhast and paikhast raiyats. The khudkhast raiyats were not liable to ejectment provided they paid rent at the perganah rate 'the rate of nirikbandy of the pargana' as laid down in Section 60, C1.(2), Regn. VIII of 1793. As Mitter, J. pointed out in Sarat Chandra Boy Choudhuri v. Asiman Bibi (1904) 31 Cal 725 at p. 730, the enhancement of rent of khudkhast raiyats beyond the perganah rate was practically forbidden. Far otherwise was the case of paik paikhast raiyats who were non-resident cultivators and who were liable to ejectment at the option of the landlord. The object of the framers of the Patni Regulation was to accord to the khudkhast raiyats the same protection which they enjoyed under the defaulting patnidar: they could not be evicted from their land, and all bona fide engagements with them were upheld except that the purchaser could institute a suit for adjustment of rent and notwithstanding any agreement to the contrary regarding the amount of rent payable, the Court could adjust the rent on the basis of what was demandable at the time of the engagement. The word 'demandable' seems in my mind to have a clear reference to the perganah rate, or the nirikh of perganah according to which rents were paid by khudkhast raiyats.
11. As I have said above, the enhancement of rent of the khudkhast raiyat beyond the perganah rate was altogether unknown and the position therefore was that irrespective of any agreement between the parties and in spite of an agreement to the contrary, the purchaser at a patni sale could demand what was payable by the khudkhast raiyat as the customary rent of the perganah. The same principle is noticeable in the various Regulations and Acts dealing with sales for default in the payment of Government revenue. In Regulation 11 of 1822 it was stated that the purchaser could not eject a khudkhast raiyat or resident and hereditary cultivator having a right of occupancy, nor shall demand a higher rent than what was receivable by the former malgujar except where according to law or custom a higher rent was demandable (S. 32). The Revenue Sale Law of 1859 was passed after the distinction between khudkhast and paikhast raiyat was swept away, and a different classification of cultivating tenants was introduced by Act 10 of 1859. Section 37 of Revenue Sale Law (1859) declares that the purchaser at a revenue sale would not be entitled to eject a raiyat having a right of occupancy... or to enhance the rent of any such raiyat otherwise than in the manner prescribed by law and otherwise than the former proprietor could do irrespective of all engagements made since the time of the permanent settlement. An exception was made in case of raiyats enjoying fixity of rent from before the permanent settlement inasmuch as they became statutory raiyats at fixed rates under Act 10 of 1859. Under the Bengal Tenancy Act also, prior to the insertion of Clause(ff)in Section 160 by the Amending Act of 1928, an occupancy raiyat, if he acquired mokrari right by contract, was protected from eviction, but could not assert his mokrari right against the purchaser at a rent sale.
12. Thus in my opinion Section 11, Clause (iii) of the Patni Regulation does entitle the purchaser, in spite of any covenant relating to fixity of rent, to demand from the khudkhast raiyat such rent as was payable by him in law or according to custom, at the time of the inception of the tenancy, and this shows that it is the law and not the contract between the outgoing landlord and the tenant that governs the rights of the parties relating to payment of rent after the patni sale. Some anomalous results are likely to follow by making this provision of Clause (iii), of Section 11 of the Patni Regulation applicable in its entirety to occupancy raiyats because of the amendment of Section 195(e), Ben. Ten. Act. The provision relating to adjustment of rent in Section (11), Clause (iii) was made by the Legislature having in mind the then existing law and custom relating to khudkhast raiyats. There is no such thing as a customary or perganah rate in the case of occupancy raiyats and a suit for adjustment of rent, when the tenant is an occupancy raiyat, must mean a suit for settlement of fair and equitable rent, which has got to be fixed, however, not with reference to the state of things at the time when the suit was instituted, but at the time when the tenancy itself came into existence. It is difficult to hold however that in case the occupancy raiyat who has got mokrari rights by contract, the rent that is adjusted in the suit brought by the purchaser becomes the mokrari or fixed rent for all time to come. The very fact that the Court has authority to adjust the rent 'shows that the mokrari character of the tenancy is gone and the future right of the parties must be governed by the law for the time being in force.
13. Mr. Chatterjee for the respondent has drawn my attention to a judgment passed in a previous suit between the parties where the Court refused to enhance the existing rent. This was a suit brought by the present plaintiff for recovery of khas possession, on ejecting the tenant with an alternate prayer for settlement of fair and equitable rent. It was held by the Appellate Court that the tenants being occupancy raiyats could not be ejected, that they could not claim mokrari right after the patni sale, and that the existing rent not being lower than what could be demandable at the date of the tenancy, no further enhancement could be allowed. In my opinion the decision is binding between the parties on all these points. The existing rent must be deemed to be fair but at the same time the holding could no longer be regarded as mokrari holding. No suit for settlement of fair and equitable rent would again lie at the instance of the plaintiff, but he would certainly be able to claim enhancement for rise in the price of staple food crops, or for any other reason for which a landlord is entitled in law to claim enhancement of the rent of an occupancy raiyat. For all these reasons, I allow the appeal, the judgment and decree of the Court of appeal below is set aside, and the suit is remanded to the Court of Appeal below who will determine the enhancement if any that the plaintiff may be entitled to under Section 80(b), Ben. Ten. Act, on the evidence that is on the record. The appellant is entitled to costs of this appeal. Hearing fee one gold mohur; further costs to abide the result. Leave to appeal under Section 15, Letters Patent is asked for and is refused.