1. We propose to deal first with Appeals Nos. 410 and 2430 as the question in both these appeals turns on the construction of the same lease Ex. A. The appeals arise out of certain proceedings taken in the Court of the Assistant Settlement Officer of Khulna under Section 105, Ben. Ten. Act. The plaintiffs who are the landlords contended that they are entitled to enhancement of the rent of the tenures now in question. The defendants on the other hand contended that they are entitled to reduction of rent for reduction of area. The further question for determination before the settlement officer was what should be the fair and equitable rent of the tenure in suit. The settlement officer was of opinion that the tenure was not mukarrari and that its rent was enhanceable and he accordingly settled fair and equitable rent which was to take effect from Baisakh 1336. Two appeals were filed by the defendants tenants against the orders of the settlement officer in the two applications under Section 105 of the Act. The kabuliyat of both the tenancies is the same and is evidenced by Ex. A, and both the tenancies were said to have been covered by khatian No. 416. There has been some difference in the order in these two appeals. In one case the settlement officer has directed a remand for the purpose of determining the amount of abatement of rent. Prom that case Appeal No. 410 has arisen and the remand order is attacked on the ground that it was unnecessary, for according to the contention of the plaintiffs the tenancy is not mukarrari. In the other case the appeal was allowed by the Special Judge. Against that order S.A. 2430 has been preferred.
2. It will be necessary to set forth the material portions of the kabuliyat in order to determine whether the contention of the appellants that the tenancy is not mukarrari is sound or not. The Special Judge has held against the appellants and he has come to the conclusion from an examination of the terms of the kabuliyat that after the year 1297 B.S. the landlords-plaintiffs are not entitled to any enhancement of rent except under certain contingencies provided for by the kabuliyat. In para. 2 of the kabuliyat it is stated that out of 64 high as 18 cottahs 9 chittaks an area of 13 cottahs 9 chittaks of uncultivated land being deducted there remain 64 bighas 5 cottahs which the tenants say they possessed rent-free till 1294 and for which for the year 1295 they say they paid rent of Rs. 32-2-0 at the rate of 8 as. per bigha, for the year 1296, Rs. 84-3-0 as rent at the rate of 12 annas per bigha, and the kabnliat provides that
from the year 1297 onwards we have agreed to pay the total rent of Rs. 64-4-0 at the full (purdastur) rate of Re. 1 per bigha according to the lasts mentioned below and will pay the same.
3. It is further stated that the tenants will not be entitled to raise any objection as to the payment of the said rent on the ground of flood, draught, diluvion, worm, famine, death or disappearance. In para. 3 of the kabuliyat it is stated that the land shall be measured from time to time and according to the measurement of the said land the tenancy will be liable to either enhancement or abatement of rent. In para. 4 it is stated that if on the settlement by Government the present rate of revenue is ever raised, then the tenants will pay from the time of the said resettlement the present rent plus an increment in proportion to the amount of revenue raised by the Government. In para. 9 the stipulation is as follows:
I will be bound by all the provisions of the law relating to rent which is in force or will in future be enforced and I will act accordingly.
4. From these clauses of the kabuliyat it has been argued on behalf of the appellants that it cannot be contended that the landlords have precluded themselves from their right to enhance the rent, and it is said that in the absence of such provision in the kabuliyat the lower appellate Court should have come to the conclusion that the rent of the tenancy was enhanceable. In support of this contention reliance has been placed on a recent decision of their Lordships of the Judicial Committee of the Privy Council in the case of Krishnendra Nath v. Kusum Kumari where their Lordships are said to have observed that on a true construction of the pottah before them there are no terms used from which it can be inferred that the landlord abandoned his right of enhancement, while the express provision that rent will not be reduced seems to negative the construction. The lease in that case is set forth at p. 49 (of 54 I. -4.). That was not a case of reclamation lease with variable rental up to a certain, time and maximum rent fixed which was not to be enhanced. That was not a case of reclamation lease where progressive rents were stipulated fixing a certain maximum.
5. In that lease there was a stipulation to the effect that the tenants will not be entitled to ask for reduction of rent on any ground. But there was no- corresponding stipulation that the landlord would not be entitled to ask for enhancement. Ordinarily the true principle is that in the absence of any contract to the contrary the landlord's right to enhancement is preserved, and that is what their Lordships were laying down in the case in 54 Indian Appeals 48 (1). In the present case the lease has resemblance to the memorandum of agreement to some extent which is to be found in the case of Port Canning and Land Improvement Co. Ltd. v. Katyani Debi A.I.R. 1919 P.C. 42. It is true that there was no lease in that ease, but the memorandum of agreement which was to be found in the books of the company showed that the tenure was to be rent free from 1291-94, it was to carry rent 4 annas in 1295, 8 annas in 1296, 12 annas in 1297 and 17 annas in 1298. The tenure was as in the present case heritable, it was admitted to be transferable and it was also admitted that it was, permanent. Under those circumstances their Lordships said that the two admitted characteristics of the tenure, viz., that it was heritable and transferable would create a presumption in favour of the tenant and throw on the plaintiff the onus of showing that the tenure is wanting in the characteristic of fixity of rent. Then their Lordships proceeded to determine the question assuming that the onus lay on the defendant and they say that they are of opinion that the onus has been discharged. The passage which is material to the present controversy may be usefully quoted from their Lordship'9 decision. They say this:
In the books of the plaintiff company it is expressly stated that the tenure should not be liable to rent for the first four years. After that it is to carry rent on the progressive scale until in 1298 it reached Re. 1-1-0. The contract as to progressive rise thus came to an end in 1298 and there is no reference to further enhancement by operation of law. la their Lordships' opinion the clear inference from these facts is that the maximum rent reached in 1298 was the fixed rent of the tenure so long as it lasted.
6. It has been sought to be argued on the basis of certain expressions used in this judgment, namely, 'that there is no reference to further enhancement by operation of law,' that their Lordships of the Judicial Committee did not agree in the broad proposition formulated by their Lordships in their decision in Soorasoondary's case  15 Beng.L.R. 125n. But that contention does not seem to be right seeing that their Lordships referred with approval at p. 284 of the Report to their own decision in Soorasoondary's case  15 Beng.L.R. 125n. But assuming for the sake of argument that their Lordships of the Judicial Committee while dealing with the case of Port Canning v. Katyani Debi A.I.R. 1919 P.C. 42 required as a further condition for establishing fixity of rent that there should be no reference to further enhancement by operation of law, in the present case it seems to us that all the characteristics of fixity of rent as laid down in the case in Port Ganning v. Katyani Debi A.I.R. 1919 P.C. 42 are present. Para. 9 in terms does not refer to any enhancement by operation of law, and having regard to the stipulation in para. 2 to the effect that from the year 1297 onwards the parties have agreed that the total rent should be Rs. 64-4-0 as the full (purdastur) rate of Re. 1 per bigha according to the kists mentioned in the document it appears clear that before any contention can be raised that the rent was not fixed from after 1297 there should be an express stipulation to that effect. Para. 9 must refer to other provisions relating to rent which were in force at the date of the kabuliyat or which would come into operation after the date of the kabuliyat, provisions other than the condition relating to enhancement of rent, for by Clause 2 the rent has already been fixed and it is not liable to be increased except in the contingencies provided for in paras. 3 and 4. of the kabuliyat.
7. It has also been argued that whatever view their Lordships might have taken in Port Canning v. Katyani Debi A.I.R. 1919 P.C. 42 that view has to some extent been modified by the decision of their Lordships in the case in Krishnendra Nath v. Kusum Kumari and reference has been made to a decision of our learned brothers ... Cuming and Mukerji, JJ. in the case of Upendra Lal Gupta v. Jogesh Chandra : AIR1928Cal186 . In that case Mukerji, J. seems to be of opinion that the latter pronouncement of the Judicial Committee in the case of Krishnendra Nath v. Kusum Kumari seems to militate against the correctness of the dictum as to the burden of proof in the case of Port Canning v. Katyani Debi A.I.R. 1919 P.C. 42. Every decision of their Lordships of the Judicial Committee must as their Lordships have themselves said, be taken to be correct, and if there is apparent conflict between the two decisions of their Lordships it must be taken that they are applicable to different states of facts. It is not necessary in the present case to consider whether the decision in the case of Krishnendra Nath Sarkar in any way militates with the previous decision in Port Canning v. Katyani Debi A.I.R. 1919 P.C. 42. To us it seems that the case of Krishnendra Nath Sarkar proceeded on the construction of the lease, whereas the observations made by the Judicial Committee in the case of Port Canning (2) were made in a case where there was no lease and certain circumstances existed from which the Judicial Committee came to the conclusion that where the tenure was heritable and transferable it must be shown that the tenure was wanting in the characteristic of fixity of rent. That was the inference which was drawn by their Lordships from the facts after throwing the burden of proof on the person who alleged that the tenure did not carry fixed rent although the tenure was permanent and heritable and although it appeared that progressive rent leading to maximum rent was fixed in the memorandum of agreement. On the construction of this lease we think the lower appellate Court has correctly come to the conclusion that the lease is a mukarrari one.
8. The result therefore is that both these appeals M. A. 410 and S.A. 2430 must be dismissed with costs. In M. A. 410 and S.A. 2430 we assess the hearing-fee at one gold mohur in each appeal.
9. With reference to S.A. 2439 the lease which we have to construe is almost of the same character as Ex. A in the two appeals which we have just disposed of. But there is a further clause within the lease that except on the ground stated in the lease the rate per bigha of the jama will not be raised, and it has been conceded by Mr. Bose who appears for the appellants that in this case the lease is more favourable to the tenants than the lease in the other two cases which we have just dealt with. Under these circumstances this appeal must also be dismissed with costs. The hearing-fee is assessed at one gold mohur.