B.B. Ghose, J.
1. This appeal arises out of a suit brought by the plaintiffs for enhancement of rent under Section 7 of the Bengal Tenancy Act. Record of rights was prepared with regard to this tenancy which was finally published on the 28th May, 1918. The record was that it was a kaimi tenure but not mokarari. The plaintiffs rely upon the record of rights sind ask for enhancement of rent. The defence, which it is now necessary for us to mention, was that the rent was fixed and not liable to enhancement. The Court of first instance found that the rent was liable to enhancement and fixed the rent which it considered to be fair and equitable. On appeal by the defendants they again urged that the rent was fixed and the learned Judge below has given effect to that contention.
2. In the plaintiffs' appeal, the main argument addressed on their behalf is that having regard to the provisions of Section 115 of the Bengal Tenancy Act the learned Judge below was in error in holding that any presumption of fixity of rent arises on account of unvaried rent having been paid for 29 years prior to the institution of the suit. What the Judge says is this:
In my opinion however having regard to the fact that the tenure has been described as kaimi the presumption as to the correctness o the entry with regard to its not being mokarari has been rebutted by the admitted fact that the rent has not been varied since 1891, that is, for nearly 29 years prior to the institution of the suit.
3. It is necessary to mention that in 1891 a solenama was entered into between the parties where the rent was stated to be Rs. 43 and odd at that time. The learned Judge relies on a series of cases in which, apart from the provisions of Section 50, Sub-section (2) of the Bengal Tenancy Act, the inference was drawn as to the fixity of rent from long payment of rent at a uniform rate when the cases were not under the Bengal Tenancy Act. In our opinion it cannot be held in a case brought under the Bengal Tenancy Act that any presumption arises as to the fixity of rent from mere payment of the same rate of rent for. a number of years apart from the presumption arising under Section 50 of the Act. To hold otherwise would be to require every landlord to enhance the rent of every tenant under him at certain intervals of time which he might not himself desire to do.
4. The question then simply turns on the proposition whether in the present case the presumption under Section 50, Sub-section (2) can be given effect to. Having regard to the provision of Section 115 of the Bengal Tenancy Act, as it has been recorded under Chapter X of the Act that the tenancy is not mokarari, we are of opinion that the presumption under Section 50 does not apply to this tenancy. It has been so held in a number of cases following the principle laid down in the Full Bench case of Prithichand Lal Choudhry v. Basarat Ali (1909) 37 Cal. 30. We need refer only to one of them, the case of Harihar Prasad Bajpai v. Ajub Misir (1913) 45 Cal. 930 which has been followed in several subsequent cases. The learned vakil for the respondents, however, argues, relying upon certain observations made at page 39 of the report in Pirthiohand Lal Chowdhry v. Basarat Ali (1909) 37 Cal. 30, that the provisions of Section 115 cannot be given effect to in this case, since it is still open to the defendants to bring a suit for declaration 4hat the record of rights is erroneous, under the proviso to Section 111-A of the Bengal Tenancy Act. His argument may be stated in this way the defendants might bring a suit under that proviso within six years of the record of rights, and if they had brought such a suit they might rely upon the presumption raised under Section 50 of the Bengal Tenancy Act in support of their contention, and it is only reasonable that they should be allowed to rely upon the presumption of Section 50 when defending a suit brought by the landlord before the expiry of the period of limitation with regard to their suit for declaration that the record of rights is erroneous. But the observation relied on were with reference to proceedings taken under Chapter X against the record. Where no such proceedings are taken the clear provisions of Section 115 should be given effect to. That section says: 'When the particulars, mentioned in Section 102, Clause (b) have been recorded under this chapter in respect of any tenancy the presumption under S50 shall not thereafter apply to that tenancy,' Among the particulars, it is mentioned that the present tenancy is not a mokarari tenancy, and therefore, according to the express provisions of this section, the presumption under Section 50 cannot apply.
5. In our opinion the contention of the appellants is right and the decision of the learned Judge that the rent of this tenancy was fixed in perpetuity must therefore be set aside. The learned Judge in view of his decision did not consider what should be the fair rent of this tenure the case must therefore be sent back to the lower Appellate Court for coming to a decision on the question and for disposal of the appeal. The plaintiffs are entitled to their costs of this appeal.
6. The cross-objection is dismissed without costs.
7. Also concurred in the above judgment.