1. This appeal arises out of a suit for enhancement of rent under Section 7 of the Bengal Tenancy Ace. The whole Mauzah had been in the lease of one Jasmat Mondal at a quit rent but the interest of. Jasmat was purchased by the Manager of Messrs. Watson and Co., the predecessors-in-interst of the plaintiffs and the settlement with Raghunath Palit was made in the year 1251. The lease was in respect of 376 bighas of land at a rental of Rs. 121-4 per annum: the fall rental was not to be paid until the third year : it was to be Rs. 105-4 in 1251. Rs. 10.9-4 in 1252, Rs. 121-4 in 1253 and there after the tenant was to pay for any additional lands found in his possession at the same rate: no specific rate is mentioned but the rate works out to 5 annas 4 pies per bigha. After the death of Raghunath, his son Joy Gopal Palit entered into a similar contract in 1265 in respect of 444 bighas of land made up of the lands covered by the lease of 1251 plus 71 bighas odd land found in excess on measurement. The rent was Rs. 121-4 the old rent for the old lands plus Rs. 32-4 for the excess lands at the rate of 5 annas 4 pies per bigha, the full demand of Rs. 144-8 being payable from 1266. There is the same covenant for assessment of rent at the rate of 5 annas 4 pies per bigha on excess lands found, on measurement. The plaintiffs then sold their rights to the ancestor of the defendants. The predecessors of the plaintiffs sued the old tenants, the Palits, and on the 16th of August 1886, the ancestor of the defendants entered into a solenama by which the same rate 5 annas 4 pies was maintained and the arrangement was expressly made binding on heirs and representatives. This arrangement went on till 1905, when the plaintiffs brought a suit for enhancement claiming Rs. 352 in place of Rs. 176. That suit wag, however, withdrawn and the present suit was brought for Rs. 1,008 odd as the enhanced rent. The first Court dismissed the suit holding that the defendants were entitled to the presumption of permanency under Section 50 of the Bengal Tenancy Act. The lower appellate Court has decreed the appeal of the plaintiffs enhancing the rent to Rs, 350 per annum,
2. The defendants appeal and on their behalf it has been contended that the lower appellate Court is wrong and that the rent is not enhanceable except in accordance with the contract made between the parties, that is to say, that the rate of 5 annas 4 pies per bigha is permanent and increase of rental can be claimed only for excess lands, if any at that rate and not otherwise. The tenancy has been found to be heritable and there is no dispute as to that. The original rate of 5 annas 4 pies per bigha has been maintained ever since 1251 not with standing one intermediate transfer and several successions. The object of the lease of 1251, was as stated in the plaint, the realisation of rent from tenants and the reclamation of jungle lands. Hence the repeated covenants for assessment of rent on excess lands brought under cultivation. Hence the rassad or deduction allowed at the inception of each renewal. It is true there are in the leases no words which by themselves would bar an enhancement such as are used in formal leases in other parts of the country. But there is the conduct of the parties for more than 60 years showing that not with standing one transfer and several successions, the same rate of 5 annas 4 pies has been maintained; there is the admitted object of the lease in respect of a large fraction at least of the lands to extend cultivation over jungle land : there is the progressive nature of the rental in respect of the excess lands. .Most of the elements of the case of Robert Watson & Co. v. Radhanath Singh 1 C.L.J. 572 are therefore, present in this case and an inference of permanency as to the rate of rent is, therefore, quite legitimate. It is contended that the Court of appeal below has come to a finding of fact which is not, amenable to revision in second appeal. It was laid down, however, by the Full Bench in the case of Sulatu Doss v. Jadunath Dass 8 C.W.N. 774. that the question as to the nature of a tenancy is a question of law. We can, therefore, decide on the facts found whether the tenancy of the defendants is liable to enhancement and if so, in what manner.
3. There is another very important factor in the case and that is the covenant for the assessment of rent at the same rate upon excess lands found upon measurement. If enhancement is allowed upon assessment, how are excess lands found upon a future measurement to be assessed. The learned Vakil for the appellant says there will be no further occasion for recourse to that covenant. It may be so, but that would be because the landlord having established a claim to much higher figures on the basis of the proposed assessment would not be content with the old rate. There would, therefore, be a nullification to that extent of the existing' contract. In the case of tenures Section 7 of- the Bengal Tenancy Act allows enhancement only in the absence of a contract. To our minds a decree for enhancement would contravene the terms of the contract. On this ground also we think that no enhancement can be allowed except as contemplated by the lease.
4. In the result, therefore, we think that the decree of the lower appellate Court is wrong and ought to be set aside and we accordingly order that the appeal be allowed and the suit dismissed with costs in all Courts.