1. This is an appeal under the Letters Patent in a suit instituted by the plaintiff appellant for declaration that he was a tenant at fixed rate of rent in respect of the lands in suit. In view of an order passed in accordance with the provisions contained in Sub-section 26-D and 26-F, Ben. Ten. Act, the plaintiff in the suit prayed for the further declaration that those provisions of the law had no application to the lands in suit, and for recovery of possession of the lands, inasmuch as there was an order for preemption in favour of the defendant landlord. It would appear that the plaintiff purchased the lands in suit from a tenant under the defendant; the landlord defendant having applied under Sub-section 26-D and 26-F, Ben. Ten. Act, for exercise of the right of pre-emption, in the matter of the purchase made by the plaintiff, the application was allowed; in the order passed on the application for pre-emption made by the landlord the question of status and nature of the tenancy purchased by the plaintiff was not determined and was expressly left open. As has been mentioned already, the case of the plaintiff before the Court, so far as the suit giving rise to this appeal was concerned, was that he had purchased the lands in suit, appertaining to a tenancy at a fixed rate of rent, and that the landlord had no right to exercise any right of pre-emption in regard to the same The plaintiff's claim in suit was resisted by the defendant landlord, who asserted that the tenancy in question was an ordinary occupancy holding, and not a holding at a fixed rate of rent.
2. The questions for determination in the suit, so far as they are relevant for the purpose of this appeal, were those indicated by Issue 6 raised on the pleadings of the parties concerned: What is the status of the plaintiff? Is the plaintiff an occupancy raiyat or a raiyat at fixed rate in respect of the lands in suit? The plaintiff's suit was dismissed by the trial Court. On appeal by the plaintiff, the learned Subordinate Judge in the lower appellate Court, on a consideration of the evidence in the case came to the conclusion that the rent of the holding to which the lands in suit appertained, was fixed in perpetuity. It was held on evidence that the defendant in the suit had failed to rebut the presumption of fixity of rent arising from payment of rent for a long period at an unvarying rate. A decree was passed in favour of the plaintiff declaring that the plaintiff's interest in the land in suit was that of a raiyat at fixed rate and that the provisions of Sub-section 26-D and 26-F were not applicable to the lands in suit; the defendant was permanently restrained from taking possession of the lands in suit. The decree passed by the lower appellate Court was set aside on appeal to this Court; and the learned Judge of this Court against whose decision this appeal is directed, dismissed the plaintiff's suit.
3. The first ground on which the decree of the Subordinate Judge in the Court of appeal below, passed in favour of the plaintiff appellant before us, was set aside was that the plaintiff's action in depositing the landlord's fees under Section 26-D, Ben. Ten. Act, estopped him from claiming against the defendant that the holding in suit was not an occupancy holding. In view of the position indicated already, that the question of status of the plaintiff, whether he was a tenant at a fixed rate of rent, having been expressly left open, as mentioned in the order recorded in the proceeding in which the defendant wanted to exercise his right of pre-emption as a landlord, the question of estoppel as discussed by the learned Judge of this Court in his judgment, did not, and could not, arise. On the findings arrived at by the Court of appeal below, there was no case of estoppel operating against the plaintiff in the matter of his claim in the suit in which the appeal has arisen. As has been noticed by the learned Subordinate Judge in his judgment, the fact that in the kobala by which the plaintiff purchased the lands in suit there was no mention of fixity of rent, that the plaintiff paid the landlord's fees at the time of registration of the kobala, did not give rise to any estoppel against the plaintiff. The rights of the parties concerned had to be determined in respect of the lands in suit, and the question of fixity of rent as raised in the suit which was left open in the previous proceeding under Sub-section 26-D and 26-F, Ben. Ten. Act, had to be determined on materials on record, apart from the position that there was payment of landlord's fees at the time of the registration of the kobala by which the plaintiff had purchased the lands in suit.
4. The nature of the tenancy and the incidents of the same could not be changed by an act or declaration of the plaintiff; and there was, in our opinion, no admission by the plaintiff which induced the defendant to alter his condition, as mentioned by the learned Judge of this Court in his judgment. It may be mentioned that the learned advocate for the defendant-respondent did not rest his case before us on estoppel operating against the plaintiff-appellant, and did not make any serious attempt to support the decision appealed against, on the ground of estoppel.
5. The question for consideration next is whether the learned Judge of this Court was right in holding against the decision of the final Court of fact, that the holding in the case before us, was not held at a fixed rate of rent. It is well settled, that even in cases where presumption under Section 50, Ben. Ten. Act, as to fixity of rent, does not arise directly, as in the case before us the Court would be justified to act on presumption similar to the one arising under that section, if the facts justify the same. A presumption that a tenant holds at a fixed rate may arise on facts, as in the case of uniform payment of rent for a number of years; and in cases not coming within the purview of Section 50, the Court is entitled to consider the facts in view of all the circumstances, and determine whether it was a just inference that a particular holding bears a fixed rental. According to the Court of appeal below on the evidence in the case the presumption arose that the status of the plaintiff was that of a tenant holding at rent fixed in perpetuity; and it was for the defendant landlord to rebut that presumption. The question whether a tenant has held at a uniform rate for a number of years is a question of fact, and not of law, and not an inference of law drawn from facts; on such a question the finding of the Court of first appeal is conclusive. The Court of appeal below came to the definite conclusion on evidence in the case, that the origin of the tenancy in question, to which the lands in suit appertained, was unknown; that there was no enhancement of rent for a very long period; that there were other circumstances from which it could reasonably be presumed that the rent of the holding was fixed in perpetuity; and that the defendant had failed to rebut the presumption of fixity of rent arising from payment of rent for a long period at an unvarying rate.
6. The findings arrived at by the Subordinate Judge in the Court of appeal below were binding on this Court in second appeal. It may be noticed in this connexion that the observations of their Lordships of the Judicial Committee in Dhannammal v. Motisagar 1927 P C 102 the question whether the tenancy was permanent or precarious, in the case before the Judicial Committee, seemed to their Lordships to be a legal inference from facts, and was not a question of fact, has no application to the case before us, seeing that the question before the Court was simply whether a pre-sumption could or could not arise from a tenant having held at uniform rate for a very long period and from other circumstances that the tenancy was one of which the rent was fixed. Such a question must be a question of fact; and the decision of the final Court of fact must be taken to be conclusive between parties concerned. See in this connexion Alimuddin Mollah v. K.S. Bannerji 1925 Cal 632. The presumption of fact as to fixity of rent was drawn in the case before us, from evidence on record by the Court of appeal below, and that presumption had not been rebutted. In the above view of the main question arising for consideration in this appeal, the decision of the Subordinate Judge in the Court of appeal below, could not be interfered with. The above conclusions arrived at by us dispose of this appeal. It was however raised before us on behalf of the defendant-respondent that two other questions arose for consideration in the case before us, namely:
I. That in view of the provisions contained in Section 26-F (5), Ben. Ten. Act, the plaintiff had no subsisting interest in him, on which the claim in suit in the present case, could be based. The suit was, therefore, not maintainable.
II. That regard being had to the final decision in a proceeding under Section 106, Ben. Ten. Act, the suit was not maintainable, and that the said decision operated as a complete bar to any relief being granted to the plaintiff in the suit.
7. There is nothing contained in the issues, raised for determination in the suit, and in the judgments of the Courts at the previous stages of the litigation, from which it could possibly be said that the points now sought to be raised before us, relating to the maintainability of the suit in which this appeal has arisen, was raised by the defendant at any previous stage of the litigation. We are unable to give effect to any of the contentions raised before us for the first time, and we are not at all satisfied that there is any substance involved in them. In the result, the appeal is allowed. The decision of the learned Judge of this Court, against which this appeal is directed, is set aside; and the decree of the Subordinate Judge in the Court of appeal below, passed on 30th November 1933, in favour of the plaintiff appellant, is restored. The plaintiff-appellant is entitled to get his costs in the litigation throughout from the defendant-respondent.