1. This appeal arises out of a suit for rent in which the plaintiff claimed rent at an enhanced rate under Section 30, Clause (b) of the Bengal Tenancy Act. His suit has been decreed at the existing rate, the prayer for enhancement being refused by the Courts below. He has appealed.
2. The plaintiff's case was that there was an occnpancy jote held by Keshab Pal and Jadab Pal which stood in the name of the former and consisted of 19 and odd bighas of land and bore a rental of Rs. 23 and odd, that Keshab Pal having left, Jadab Pal alone held the said jote, that thereafter some more lands were settled with Jadab Pal and on that the area of the jote became 27 bighas and odd and the rental was raised to Rs. 37 and odd, that in 1295 Jadab Pal took settlement of some more lands and obtained a pottah in respect of the total area which was then found to be 31 and odd bighas and the rental was again enhanced to Rs. 42 and odd. The defendants purchased a portion, namely, 24 and odd bighas of this jote and on that the plainiff instituted a suit for ejectment, being Suit No. 354 of 1911, which eventually ended in a compromise by which the defendants were, according to the plaintiff, recognised as occupancy raiyats in respect of the said 24 and odd bighas on a rental of Rs. 33 and odd.
2. The defence in so far as it is necessary for the purposes of this appeal was that this jote had nothing to do with Keshab Pal, that Jadab Pal and his predecessors held the jote which originally consisted of 27 bighas and odd with a rental of Rs. 37 and odd from time immemorial, that on measurement it was found to consist of 31 bighas and odd, and the rent of the total area was fixed at the old rate at Rs. 42 and odd and Jadab Pal obtained a pottah therefor on the said rental in 1925 and that the defendants have obtained recognition of their purchase of a portion of the jote by the compromise in Suit No. 354 of 1911. The defendants' case is that the rent is not enhancible.
3. One of the contentions urged in support of the appeal is that the defendants, having obtained recognition of their purchase under the compromise in Suit No. 354 of 1911 on the footing of the holding being a mere occupancy holding, cannot turn round and set up a different status or assert that the tenancy is one at a fixed rate of rent. A number of authorities have been cited before me to establish this position, but I am of opinion that there is no room in the present case for the application of this doctrine of estoppel. Nor do I think that it is necessary to discuss those cases which have been cited before me to establish the proposition that where a person in taking settlement from a superior landlord expressly stipulates that he would be bound to recognize the rights of the intermediate or subordinate or other holders whose rights have been recorded in the settlement proceedings, he is bound to respect those rights, even if they do not exist in fact. I am inclined to agree with the learned Munsif in the view he has taken of the expression 'being in possession as a raiyat with occupancy rights' to be found in the compromise. In my opinion it would not be right to read the expression as an admission on the part of a representation by the defendants. as regards their status, but that it was only meant to be a recital, narrating though not quite happily the allegations upon which the suit was founded. Assuming, however, that it was meant to be an admission, the defendants are not precluded from showing that it was wrong unless the admission can be held to operate as an estoppel. That it cannot operate as estoppel is beyond question, for it is impossible to hold that the recital was contractual or essential for the purposes of the instrument or that it was ever the intention of the parties to make the fact recited a basis of their action in the matter of the compromise. This ground therefore has no substance. The other arguments of the appellant resolve themselves into one main question, namely, whether the learned District Judge was right in holding that the rate of rent payable by the defendants was fixed in perpertuity. In arriving at his conclusion in the affirmative on this point, the learned District Judge has proceeded entirely upon a stipulation which is to be found in the pottah of 1295 and is to the effect that if any additional area was discovered in future in the tenants possession, rent worild have to be paid therefor at the rat fixed in the pottah. He has relied upon two cases, namely, Amar Nath Bhatta charya v. Baja Hrishikesh Laha  35 C.L.J. 138 and Golam Rahaman Mistri v. Guru Das Kundu Chowdhuri A.I.R. 1928 Cal. 505 as warranting the conclusion from that stipulation alone. In this the learned Judge seems to have been in error for all that these cases suggest is that this stipulation forms an important factor in the determination of the question. That it is not the sole determining factor can be gathered from the cases of Surja Prasad, Sukul v. Midnapur Zamindary Co.  38 C.L.J. 369 and Ram Kumar Singh v. Messrs. Robert Watson & Co.  9 C.W.N. 334, which, though they dealt with the liability of a tenure-holder to pay an enhanced rent under Section 7 of the Bengal Tenancy Act notwithstanding a stipulation of this nature, may be usefully referred to in this connexion. That this stipulation cannot by itself determine the question is also clear from the case of Bhairab Chandra Das v. Midnapur Zemindary Co., Ltd. : AIR1924Cal513 .
4. The judgment of the learned District Judge to my mind seems faulty. The question then is what course should be adopted. The defendants' liability has to be determined upon a construction of the pottah of 1295 in the light of the compromise referred to above. No investigation of facts appears to be necessary and I do not feel pressed by the appellants' argument that the learned Judge has not arrived at any finding on the question whether the present holding has any connexion with that of Keshab Pal which consisted of an area of 19 and odd bighas and bore a rental of Rs. 23 and odd, and which was afterwards found to consist of an area of 27 bighas and odd and then the rent was enhanced to Rs. 37 and odd an enhancement which, if it took place, establishes a variation in the rate of rent. The matter was decided against the appellant by the learned Munsif and I am not satisfied that the learned District Judge was asked to investigate the matter further or arrive at a different conclusion.
5. To my mind the pottah read with the compromise leads but to one conclusion. The pottah fixes no term, but states that the tenant was holding, for upwards of 12 years, 27 and odd bighas of land at a rental of Rs. 37 and odd, that on measurement 3 and odd bighas were found to be in excess and therefore additional rent was being assessed thereon at the same rate, that if in future any excess area is found rent of such area also will have to be paid for it at the same rate and that there would be no remission of rent on any ground. The compromise states that the tenants, their sons, grandsons and other heirs in succession would be tenants under the plaintiff in accordance with the terms of the pottah. Reading the two documents together I am of opinion that a tenancy in perpetuity at a fixed rate of ren has been created.
6. It has been argued that the pottah conferred only a right of occupancy and the compromise only made it heritable in perpetuity, and reference has been made to the case of Lakhi Charan Saha v. Hamid All  27 C.L.J. 284 in support of the proposition that where the occupancy raiyat holds at a fixed rent not from the Permanent Settlement but only under an engagement since the time of the settlement, he is not protected from enhancement at the instance of a purchaser at a revenue sale under the proviso to Section 37 of Act 11 of 1859. I do not see what bearing the case last cited has upon the point now before me. In my opinion it is not possible to read the pottah as creating an occupancy holding only, and the terms thereof to which I have already referred as well as the stipulation in favour of the landlord reserving rights to only two trees standing on the holding points to the status of the tenant as being that of a raiyat at a fixed rate.
7. I am accordingly of opinion that the rent of the defendants is not enhancible under Section 30, Clause (b) of the Bengal Tenancy Act and that this appeal should be dismissed with costs.