B.K. Mukherjea, J.
1. This is an appeal on behalf of the defendant and it arises out of a proceeding commenced by the plaintiffs under Sections 105 and 105A, Bengal Tenancy Act. The plaintiffs' case was that the defendant was a tenure-holder and not a raiyat in respect of the lands in dispute and that he was incorrectly described as a settled raiyat in the C. S. records. The plaintiffs wanted this entry to be corrected and they further prayed for an enhancement of rent under Section 7, Bengal Tenancy Act. The suit was resisted by the defendant substantially on a two-fold ground. It was urged in the first place that the record of rights was correct and that the defendant was a raiyat and not a tenure-holder. The second ground taken was that the kabuliyat which created the tenancy fixed the rent in perpetuity and consequently the rent could not be enhanced.
2. The Assistant Settlement Officer was of opinion that the status of the defendant was that of a tenure-holder and not that of a raiyat; but he held nevertheless that the incidents of such tenure which was known as Rangpur Jote were the same as those of a raiyati holding and applying the same principles as are applicable in cases of enhancement of rents payable by raiyats, he increased the rent by four annas in the rupee. On appeal the Special Judge modified this decision. He was of opinion that the defendant was a tenure-holder and not a raiyat and the rent was enhanced to Rs. 85 odd in accordance with the provision of Section 7 (2), Bengal Tenancy Act. It is against this decision that the present second appeal has been preferred.
3. The first question that arises for determination in this appeal is as to whether the defendant is a tenure-holder or a raiyat. Mr. Sen appearing for the defendant has placed considerable reliance upon a kabuliyat dated 23rd Jaistha 1289 B.S. which was executed by the predecessor of the defendant in favour of the plaintiffs' predecessor. This kabuliyat which is described as dowl kabuliyat appears to be in the nature of a confirmatory lease. It fixes the rent for 84 bighas and odd cottas of land at Rs. 91 odd and deducting Rs. 43 odd annas as mahakup or temporary remission the rent payable was stated to be Rs. 48. This is also the rent mentioned in the C. S. records. The Kabuliyat does not clearly indicate as to whether the tenant was to cultivate the land himself or lease it out to others and I agree with the learned advocate for the respondent that the word 'jote' is by no means conclusive on this point. The kabuliyat however says in one place that besides enjoying the lands in raiyati right the tenant would have no right of sale or transfer without the consent of the landlords and there are further restrictions on his right to cut away and appropriate trees. The document was prior to the Bengal Tenancy Act and though I have not the least doubt that the word 'raiyat' may with reference to the context mean a tenant generally and not necessarily a cultivating tenant, I do not find anything in the document from which I could gather that the tenant here was anything else but a cultivating raiyat.
4. The executants of the kabuliyat are Rajbansis by caste and jotedars by profession. At the inception of the tenancy, the area was considerably less than 100 bighas and the C. S. Records also raise a presumption in favour of the defendant which in the circumstances of the case I think the plaintiffs have not been able to rebut. On the whole, though the point is not free from doubt altogether, I am inclined to think that the entries in the C. S. Records are correct and that the defendant was in fact a raiyat and not a tenure-holder. It now remains to settle a fair and equitable rent in respect of the holding. I think that on this point the kabuliyat upon which Mr. Sen relies would be a most important document. It fixes the rates of rent in respect of various classes of land and assesses the total rent at Rs. 91 odd. There was indeed a mahakup or remission for about Rupees 43 odd, but it was only a temporary arrangement and did not in any way affect the terms of the contract. The kabuliyat was only for a period of five years and the tenant is admittedly holding over since then. I think that Rupees 91-12-0 as laid down in the kabuliyat would be quite a fair rental in respect of the lands that are possessed by the defendant. The defendant will be bound to pay this rent with effect from the Bengali year 1345 B.S. The result is that the appeal is allowed in part and the decision of the lower appellate Court is modified. I make no order as to costs in this appeal. The order for costs passed by the lower appellate Court will stand.