1. This appeal arises out of a suit by the plaintiff to recover rent at the rate of Rs. 30 by virtue of a qabuliat, dated the 8th of January 1886.
2. A preliminary objection was taken that no second appeal lay in this case under the provisions of Section 153 of the Bengal Tenancy Act. I am of opinion that an appeal does lie inasmuch, as the question at issue is a right to enhance or vary the rent of a tenant of the amount of rent annually payable.
3. The only question in the appeal is whether the stipulation in the qabuliat is one to which Courts will give legal effect. By the qabuliat the tenant who was the predecessor -in-interest of the present defendant executed a lease mentioning therein the rate of the rental to be altogether Rs. 30 payable every year. 'Rupees nine whereof being upon my representation or application to you suspended for the present and stipulating to pay to your Sarkar the remaining Rs. 21 in all every year according to the kistibundi specified in Schedule 1,' The qabuliat further provided that the portion of rent of which the tenant had obtained suspension or remission might be demanded at any time from him by the landlord. The lower Courts have both held that this provision was merely a device to evade the provisions of Section 29 Clause (c) of the Bengal Tenancy Act. The Bengal Tenancy Act had come into force within three months before the qabuliat was executed. I am of opinion that the view taken by the Courts below is correct. This is not a case of remission by the grace of the landlord but a case of remission by contract, and it is clear that the intention of the parties was that the rent to be paid from the date the qabuliat was Rs. 21 (Twenty-one Rupees) with an option to the landlord at any time thereafter to demand a payment of rent at the enhanced rate of Rs. 30. That this was the intention of the parties is made more clear by the fact that for over 20 years the rent has been paid and accepted at the rate of Rs. 21 (Rupees twenty-one) and it is only now after that long period of time that the landlord claims the higher rent which was mentioned in the qabuliat. The enhancement is admittedly more than 2 annas in the rupee and this is in contravention of Clause (e) Section 29. I think that the opinion of the lower Courts is correct and that this appeal must be dismissed with costs.