1. The plaintiff in this suit is an assignee of a lease which was granted by the 1st defendant to the second defendant. The plaintiff brought this suit to have it declared that the lease was a permanent, heritable and transferable one, that the rent was fixed in perpetuity and also that defendant No. 1 was bound to recognise the plaintiff as tenant of the lease-hold in dispute and for other reliefs.
2. It is now admitted that the lease created a permanent, heritable and transferable tenancy and that the transfer to the plaintiff is a valid transfer. But it is contended that the circumstances of the case are not such as would justify granting a declaratory decree. The learned Standing Counsel who appears for the first defendant-respondent has cited several rulings in support, of this contention. But all these rulings were before the passing of the Specific Relief Act. Illustrations to Section 42 of the Specific Relief Act show that it has introduced a considerable change in the law on this point. We have no doubt in our mind that we have the power to grant a declaratory decree in this case. The granting of such a decree is discretionary. We think that it is desirable to grant such a decree so that there may be a final decision on the point in dispute about which the parties have been litigating. As a Court of second appeal we are bound to accept the finding of the lower Appellate Court that the word cottah' in the lease means a cottah of four cubits and also the finding that the, rent payable by the plaintiff is Rs. 19 annually, that is to say, the plaintiff has succeeded in his claim that he is entitled to recognition : but he has failed so far as he has tried to avoid payment of rent at a higher rate. For this reason we allow this appeal by granting the plaintiff a decree declaring that the lease of the 14th July 1883 granted by defendant No. 1 to Joy Narain Sarkar defendant No. 2 created a permanent, heritable and transferable tenancy and that the rent thereof is a rent at a fixed-rate per cottah of four cubits and that the annual rent is now Rs. 19. And it is also declared that the defendant No. 1 is bound to recognise the plaintiff as the tenant holding the tenancy.
3. Having regard to the success and failure of the parties we direct that each party will bear its own costs throughout.