Lancelot Sanderson, C.J.
1. I have had the opportunity of reading the judgment about to be delivered by my learned brother, Teunon, J. I agree with that judgment. I merely wish to add a few words with regard to the second contention raised by the defendants, viz., that inasmuch as in the proceedings instituted in 1896 under Chapter X of the Bengal Tenancy Act by the, plaintiff, the defendants had asserted that the tenure had been held at a rent which had not been changed; from the time of the Permanent Settlement, and that, therefore, the rent could not be enhanced, and that thereupon the plaintiff withdrew his application and that inasmuch as this suit was not brought until 16th December 1911, more than twelve years thereafter, the Suit was barred by the Act of Limitation. For the consideration of this question it must be assumed that it was one of the terms of the contract, regulating the rights of the parties, that the rent was capable of enhancement. If this be so, in my judgment, it was not possible for the defendants by the mere assertion that the rent was not capable of enhancement, which assertion was not agreed to by the plaintiff, to obtain a right which was contrary to the terms of the contract: and further if the period of limitation were to run from the date of such an assertion by the defendants, the result would be that the landlord would be compelled to sue for enhancement of rent within twelve years, even though an occasion for enhancement had not arisen.
2. For these reasons I think that the defendants' contention that the suit is barred by the Act of Limitation is ill founded.
3. This is an appeal by the plaintiff against a decision of Mr. Justice Newbould, affirming on second appeal a decision of the District Judge of Tipperah.
4. It arises out of a suit brought by the plaintiff-appellant for enhancement of the rent of a certain tenure under the provisions of Section 7 of the Bengal Tenancy Act.
5. The defence of the tenure holder defendants-respondents was that the tenure had been held at a rent that had not been changed from the time of the Permanent Settlement and that, therefore, the rent could not now be enhanced. They further say that when in proceedings under Chapter X of the Bengal Tenancy Act, the plaintiff landlord by an application under Section 104 (now Section 105) attempted to enhance their rent, they resisted his claim on the ground just set out and that thereupon the plaintiff withdrew his application, though with liberty to sue afresh. This was in 1896 and the plaintiff did not bring his present suit until the 16th December 1911, that is, more than twelve years thereafter. They contend that since their assertion to the plaintiff's knowledge of their claim or title to hold as tenants at a rent fixed in perpetuity, their possession has been pro tanto adverse to the plaintiff and his claim to enhanced rent is, therefore, barred by the twelve years rule of limitation.
6. The Trial Court and the Court of. First Appeal have both found that the defendants have succeeded in showing that for a period of more than fifty years immediately before' suit they have held at an enhanced rent, that is, at the present rate, Rs. 63-6-7. Indeed this position, it appears, was not disputed, and it is necessarily conceded that the defendants are, therefore, entitled to the presumption created by Section 50 of the Bengal Tenancy Act, Sub-section (2).
7. The appellant sought and seeks to rebut this presumption by putting in evidence two 'doul' kabuliyats, an ekrarnama, a judgment and a decree. Both Courts have found that these documents are genuine, but the learned District Judge has further found that the plaintiff-appellant has failed to show that they relate to the taluk in suit.
8. As to the taluk now in question there is in fact no. controversy between the parties. It is situated in or comprises Mowah Debugram within Fergana Nurnagar in the plaintiff's zemindari, Chakla Roshnabad. It is known as 'Jitram Taluk' being so-called after Jitram, the grandfather of defendants Nos. 5 to 7. Jitram died leaving a widow Indrani and a minor son Harish Chandra. Exhibits Nos. 7 and 9 are kabuliyata executed by Indrani in respect of Jitram Taluk--one on the 19th of Poush 1248 I.E., and one on the 23rd Sraban 1256. Exhibit No. 8 is an ekrarnama executed by Indrani on the date of the earlier kabuliyat. By these documents the rent of the taluk is fixed at Rs. 28 for the years 1248 to 1251, and at Rs. 17 for the years 1256 to 1265 (= say 1855-56). The judgment Exhibit No. 11 and the decree Exhibit No. 10 next show that in a suit brought by the plaintiff's predecessor against Indrani's son Harish in the year 1857, the rent of Jitram Taluk was enhanced to Rs. 59-10-11.
9. In the Trial Court the only suggestion put forward by the defendants against these documents was that they were not genuine, and that the kabuliyats and ekrarnama being executed by an illiterate pardanashin woman should not be accepted in evidence. On these points the findings of both Courts were against the defendants.
10. That being so, we are of opinion that in accepting a contention put forward for the first time in the Appellate Court the District Judge fell into error. The defendants may have other tenures under the plaintiff, but it is not suggested that they hold or ever held another 'Jitram Taluk' and there is no suggestion that in this Mouza Debugram there was another Jitram who like the defendants ancestor bad a taluk named Jitram, and died leaving a widow named Indrani and one minor son, be his name Harish Chandra or Hari Narain. In the decree and judgment the trifling differences in the figures of rent, between the 2nd kabuliyat on the one hand and the present rent on the other, appear to be explained by the reference to a '15-annas' Touzi. With these materials before him we are of opinion that in accepting and acting upon a case made in his Court for the defendants and not made in the Trial Court the District Judge has fallen into error.
11. When it is once found that the documents we have mentioned refer to and evidence transactions relating to the taluk now in dispute, it must be held that the rent of this taluk has been varied from time to time and is in fact in its very nature variable.
12. We then come to the question of limitation. The District Judge has applied Article 144 of the 2nd Schedule to the Limitation Act, and in so doing has relied on a number of cases decided in this Court. But these decisions were all in suits for ejectment and can be distinguished, as can the further cases cited in this Court, for instance, the cases reported as Birendra Kisore Manikya v. Anandapriya Baishanabi 30 Ind. Cas. 946 : 22 C.L.J. 151, Birendra Kisore Manikya v. Ram Chandra Dey 30 Ind. Cas. 948 : 22 C.L.J. 153, Birendra Kisore Manikya v. Kailas Chandra Sarkar 30 Ind. Cas. 937 : 22 C.L.J. 140, and Aman Gazi v. Birendra Kishore Manikya Bahadur 15 Ind. Cas. 64 : 16 C.W.N. 929. Indeed the only cases put forward on behalf of the respondent as directly supporting his contention are two cases decided by the High Court of Bombay and reported as Gopalrao v. Mahadevrao 21 B. 394 : 11 Ind. Dec. (N.S.) 265 and Thakore Fatesingji v. Bamanji Ardeshir Dalai 27 B. 515 at p. 540 : 5 Bom. L.R. 274. Bat the enactment on which these cases were decided has not been placed before us and it would seem that there the refusal of the tenant to comply with the landlord's demand for enhanced rent entitled the landlord to eject. Here the tenant's assertion that his rent was unalterable does not work a forfeiture or entitle the landlord to sue in ejectment. If then limitation were to run from the date of the tenant's assertion, the result would apparently be to compel the landlord to sue though no grounds for enhancement in fact existed. Further in the present case it has been shown that the relations between the parties depended upon contract. The judgment and decree to which we have referred are founded, on contract and in the absence of a clear, statutory provision to the contrary, a mere; assertion by the tenant cannot confer upon him rights other or higher than those embodied in the same.
13. Whether, it being conceded that the relationship of landlord and tenant exists, Article 144 of the 2nd Schedule of the Limitation Act can ever apply to a landlord's assertion and the tenant's denial of the right to enhance is a question which I do not think it necessary to decide. It may, however, be pointed out that under the Bengal Tenancy Act if for twenty years or more the landlord abstains from enforcing enhancement tin's in itself confers no right upon the tenant, but merely gives rise to a presumption.
14. It is, however, sufficient to say that, in my opinion, the Law of Limitation presents no bar to the present suit.
15. On these findings we are agreed that the decree of the District Judge must be set aside and the case remanded to him in order that he may assess and determine the rent to which the plaintiff is now entitled.
16. Plaintiff will have his costs of this appeal, and of the hearing before Mr. Justice Newbould.