S.K. Ghose, J.
1. This is an appeal by the defendants in a suit for rent, the question raised being as to the amount of rent payable. Plaintiffs are owners of a temporarily settled estate T. 919 of the Khulna Collectorate which comprises 4 mouzas, the defendants' tenure being with-in one of them. The original revenue from the entire estate was Rs. 2250 upon a settlement of 99 years. In 1932 there was a re-settlement for 30 years and the revenue fixed was Rs. 11,205. The defendants' tenure was created on 31st March 1877 and the annual rental then payable was Rs. 687-4.0 for an area of 800 bighas. In 1930 there was assessment of additional' rent for additional area and the entire annual rent then fixed was Rs. 728-2as-14g. In 1932 when there was the re-settlement, the annual rent was increased to Rs. 2822 under Ch. 10, Part 2, Ben. Ten. Act, this rent being recorded as payable from 1st April 1932. Plaintiffs have sued on the basis of the Record of Rights at the above rate for the period subsequent to 1st April 1932. The main defence is that Section 104. J, Ben. Ten. Act, is not applicable to this jama and that the plaintiffs are not entitled to get more than the rate of Rs. 728.2as-1.4g. yearly. The Subordinate Judge has held against this defence and decreed the suit. Hence this appeal.
2. The question is whether in this suit plaintiff is entitled to the rent as recorded under Part 2, Ch. 10, Ben. Ten. Act, and claimed by him, or whether he is only entitled to the rent as contracted for in the kabuliyat Ex. A and the potta Ex. B. The lease came into existence before the Bengal Tenancy Act The recitals show that the land was let out for reclamation and the terms provide for a progressive increase of rent until the 'full rate of 8 annas per bigha' is reached. Thereafter the rent is taken to be fixed, subject to the condition that if the rate of revenue be ever increased by Government the tenant would pay increased rent proportionately. The relevant clause in Ex. A runs thus:
Besides the Dak cess and the Road cess no other imposition will ever be made besides the rate of rent fixed, but whatever order will be made by Government at the time of settlement in future towards increment in respect of these lands will also be added to the jama to be paid by us.
3. Therefore subject to this contingency as to increase of revenue by Government the rate of rent is fixed. That this is the character of the tenancy is supported by the decisions in similar cases, e.g. Huro Prasad Roy Chowdhry v. Chundee Churn Boyragee (1883) 9 Cal 505, Port Canning Band Improvement Co. Ltd. v. Katyani Debi (1919) 6 AIR PC 42 and Satya Charan v. Mohan Sil Das : AIR1932Cal436 . This is also not disputed by the learned advocate for the plaintiff-respondent in this Court. But he has contended that in spite of the provisions as to rent in the lease, when once the rent has been settled under Section 104, Ben. Ten. Act, the tenant is bound to pay that rent. This is the view taken by the learned Subordinate Judge who pointed out that it was open to the tenant to move the Revenue Officer under Section 104.E or 104.G or the Civil Court under Section 104-H, that he failed to do so, and that the entry of rent is conclusive under Section 104-J. Dr. Pal for the defendant-appellant does not dispute this, but his contention is that the provision in the lease is a special condition or incident of the tenancy, that the record, or the omission to record, as to this has no more finality than that under Section 103. B, Clause (5), that is to say that it is open to defendant to show by evidence, in other words by producing the documents of lease, that so far as the plain, tiff is concerned he is not entitled to more than is stipulated for in the documents of lease. When there is a Record of Bights prepared, the particulars to be recorded are those as laid down in Section 102 and they include the rent payable at the time the Record of Rights is being prepared, the special conditions and incidents if any of the tenancy and so on. This record when finally published is presumed to be correct until it is proved by evidence to be incorrect : Section 103-B (5). Where a settlement of land revenue is not being made, fair and equitable rent may be settled under Section 105 on the application of the parties and the decision becomes final under Section 107. But where a settlement of land revenue is being made, Government has to fix the basis of such settlement by finding the assets of the estate and so we have it that in every case in which a settlement of land revenue is being made, the Revenue Officer shall proceed under Section 104 to settle fair and equitable rent. In doing so, the Revenue Officer may settle the existing rentals recorded in the Record of Rights as published under Section 103-A or he may enhance or reduce such rentals under Section 104.A (1) (d).
4. It is open to the parties interested to intervene in the settlement proceedings under Section 104-E and 104. G A person aggrieved by the decision may institute a suit in the Civil Court on any of the grounds mentioned in Section 104-H (3), which are really grounds arising out of the Record of Rights as finally published under Section 103.A; subject to all these provisions, rent thus settled shall be deemed to be fair and equitable rent under Section 104. J. Dr. Pal for the appellant does not dispute that it was open to the tenant to take steps to have the kabuliyat rent recorded. His contention is that the kabuliyat rent in this case is only a special incident of the tenancy. The kabuliyat rent may not be the same as the fair and equitable rent settled under Section 104-A to 104-F. If the estate were to be sold for arrears of revenue or Government were to make a fresh settlement with a stranger, the kabuliyat would be gone and the defendant tenant would be liable to pay the fair and equitable rent. But so long as the plaintiff is there he cannot ask for more than what is stipulated for in the kabuliyat and the omission to record this special incident of the tenancy has not the finality as to rent under Section 104-J: Ambica Charan Chakravarti v. Joy Chandra Ghosh (1909) 13 CWN 210. In Priya Nath Das v. Ramtaran Chatterji (1903) 30 Cal 811 the lease creating a permanent ganti tenure was created in 1867 and it contained a clause for proportionate abatement of rent if any part of the land be resumed by Government. In 1884 part of the land was resumed by Government and rent was fixed thereon. The suit was for the rent as fixed in the settlement of 1884 and the defendant pleaded the lease. The plaintiff relied on the Bengal Act 8 of 1879, Section 7 of which provided for record of rent as fair and equitable. Their Lordships of the Judicial Committee say:
The settlement proceeding of 1884 cannot be held to have abrogated the rights of that respondent under the pottah, so long as the Raja Baroda Kant Boy and his heirs were themselves in a position to let him have the lands. In fact the resumption by Government did not disturb the possession either of the Raja's heirs or of Chatterjee. The mere fact of resumption cannot be held to have brought to an end the rights of the respondent Chatterjee under the pottah, for the pottah itself recognizes the precarious nature of the grantor's title, and provides against the loss of possession should that be the result. The appellant founded mainly on Section 10, Bengal Act 8 of 1879. The claim of the respondent Chatterjee in no way conflicts with the operation of this section or with the rights of the Government under it. The section is plainly intended to fix for the future the liability of such under-tenants as may enter into possession. If it had seemed good to the Government to take the land into their own khas possession, or to settle it on strangers to the contract with the respondent Chatterjee then the recorded rent would have been the rate of payment by that respondent. But the lands having been settled on the heirs of the Raja who granted the pottah, the Act does not interfere with the contractual rights of the subordinate holder. Now the period of the settlement being still current, the ganti right still subsists, and the respondent is only liable for the rent payable under the pottah.
5. This was followed in Prafulla Nath Tagore v. T.C. Tweedie (1922) 9 AIR Cal 248 upon which Dr. Pal has strongly relied. There the lease was created in 1860, the relevant provision being that if any char or alluviated land was separately settled after 'becoming Government Khas' the taluqdar would not get any reduction of the jama mentioned in the kabuliyat. In 1914 there was a fresh settlement by Govern, ment and the settlement authorities settled higher revenue payable by the plaintiff and higher rent payable by the tenure holder. The plaintiff sued for the higher rent thus recorded and the defendant pleaded the kabuliyat of 1860. The decision was based upon an interpretation of the old Section 192, Bengal Tenancy Act, and it was held that that section does not empower a revenue officer to fix a rent so as to affect a contract entered into before the passing of the Bengal Tenancy Act.
6. This decision does not take us further than the present Section 191 of the Act as amended by Bengal Act 4 of 1928. To that extent, Prafulla Nath Tagore v. T.C. Tweedie (1922) 9 AIR Cal 248 may be said to have become 'obsolete' (Mitter & Mukerji 1929 Edition, p. 667). But the above amendment rather emphasizes the fact that leases touching the rent of tenures if created before the passing of the Bengal Tenancy Act, remain unaffected. In Mohendra Nath Biswas v. Syam Lal Banerjee (1914) 1 AIR Cal 617 the lease was created before the passing of the Bengal Tenancy Act. There was a resettlement by Government with the original temporary settlement holders, but in the course of the last settle-ment the undertenures were not mentioned in the settlement records. In a suit for rent, the undertenure-holder pleaded that there was no longer any relationship of landlord and tenant. It was held that the effect of re. settlement by Government with the original settlement holders or their representatives was to keep alive the contractual obligation of the subordinate holders as amongst themselves.
7. For the plaintiff-respondent in this Court, stress has been laid on two cases in which the contract was overridden, viz. Ambica Charan Chakravarti v. Joy Chandra Ghosh (1909) 13 CWN 210 which was followed in Prosanna Kumar Adhikari v. Rachimuddin Howladar (1913) 17 CWN 153. No doubt in both oases the ratio decidendi was that the rent in the lease must give way to the rent as settled under Part 2 of Ch. 10, Ben. Ten. Act. But there are points of difference from the present case. In Ambica Charan Chakravarti v. Joy Chandra Ghosh (1909) 13 CWN 210, the kabuliyat was created before the Bengal Tenancy Act but it was no longer binding because the estate, which was a permanently settled one, had been sold for arrears of revenue and purchased by Government which then settled it temporarily with the plaintiffs. In Prosanna Kumar Adhikari v. Rachimuddin Howladar (1913) 17 CWN 153, the kabuliyat was of 1904-a case which is now provided for by Section 191. These two cases may therefore be distinguished. On the contrary, it seems to us to be right that in the case of a lease which was created before the Bengal Tenancy Act the stipulation as to rent must remain un-affected as between the contracting parties in the absence of an express provision to the contrary in the Act.
8. In this view the contention for the appellant must prevail. The rent payable by the tenant will be the existing rent as per kabuliyat Ex. A plus the increase of revenue which has been assessed in respect of the lands covered by the kabuliyat. This will have to be calculated by the lower Court and a decree made accordingly. The suit is accordingly remanded to the lower Court for further hearing and determination. The appellants will get their costs in this Court and the parties will get proportionate costs according to success in the lower Court. Further costs will abide the result. Let the records be sent down as early as possible and let the hearing of the case be expedited in the lower Court. It may be added that the decree of the lower Court will stand as regards the portion not appealed against, being the admitted rent.
9. I agree that the appeal should be allowed for the reasons given by my learned brother. The question for decision falls within a small compass but at first sight some of the reported decisions appear to be conflicting. The lease of 1877 provided in effect for a fixed rental. The estate was resettled with the plaintiffs in 1930 and the 'fair rent' showed a considerable increase over the fixed rent. The landlord seeks to recover the fair rent and contends that the entry in the Settlement Records is conclusive against the tenant by reason of the provisions of Section 104.J, Ben. Ten. Act, and that the tenant is thus precluded from alleging that rent at any other rate is payable. The tenant does not dispute that the rent shown in the Settlement Record is a fair rent nor does he deny that that rent may be recoverable by some other landlord; but, he argues, the present landlord has agreed by the terms of the lease to exact only a certain rent and he has thereby precluded himself from taking advantage of any enhanced rent which may be recorded by reason of the settlement.
10. In other words be argues that the resettlement of revenue does not affect the rights of the parties inter se. He relies on the decision in Port Canning Band Improvement Co. Ltd. v. Katyani Debi (1919) 6 AIR PC 42, and contends that the terms of the kabuliyat show that the rent was intended to be a fixed rent which as between the contracting parties was not liable to enhancement under the provisions of the rent law. The oases reported in Ambica Charan Chakravarti v. Joy Chandra Ghosh (1909) 13 CWN 210 and Prosanna Kumar Adhikari v. Rachimuddin Howladar (1913) 17 CWN 153, and relied on by the defendant are distinguishable. The landlord who sued in the former case was not the-landlord who had entered into the original contract so that he was not attempting, as here, to vary his own contract to his advantage. In Prosanna Kumar Adhikari v. Rachimuddin Howladar (1913) 17 CWN 153, the kabuliyat was executed in 1904, long after the passing of the Bengal Tenancy Act by which the tenant is precluded from pleading a contractual rate differing from the rate of rent recorded. The appellant's contention must therefore prevail that the rent recorded is a fair rent but that the rent recoverable by the plaintiff is the rent provided under the terms of the kabuliyafe and the appeal must be allowed.