1. This appeal arises out of a decision of the Special Judge under Section 105 of the Bengal Tenancy Act holding that the tenure in the occupation of the defendant is liable to enhancement of rent on the ground that when the tenure was first created rent was fixed at a certain amount per drone without any reference to the area let out. It appears that in 1323 B.S. one Baidya Nath Chukraburty executed a katuliyat in favour of the then landlord in which he mentions that he has purchased a taluk standing in the came of Kamdeb Chakraburty and petitions the landlord to remove the name of Kamdeb from his sherista end to insert the name of the petitioner for which he executes a fresh kabuliyat. The terms of the kabuliyat are that the tenant agrees to pay to the landlord at a certain rate per drone of the arable land and to long as the lands are not measured the tenant will pay rent at the old rate which, however, is not mentioned in the document. In 1216 the widow of Badiya Nath files a petition to the landlords intimating that on account of her inability to pay the rent for the tenure regularly, she has transferred the tenancy to one Ram Das Chakraburtty and requests the landlords to enter the name of the said Ram Das as the tenant in her place and to accept in future the rent from the transferee. In 1249 B.S. the said Ram Das Chakraburtty executed a kabuliyat which is described as a doul kabuliyat in respect of the tenure mentioned as mudafat Baidya Nath Chakraburtty in which he mentions the fact of his purchase and prays that his name may be entered in the landlords' office in the place of the late tenant.
2. In the state of documentary evidence the Revenue Officer held that as the kabuliyat of 1223 did not mention the previous area with reference to which the rent was to be adjusted but only the rate of rent at which the rent payable was fixed the rent of the tenure cannot be enhanced. On appeal the Special Judge has held that as the rate of rent was not fixed at the inception of the tenancy with reference to any particular area the tenant is liable to pay enhanced rent for the area which be is now found to possess. Against this decree the tenant has appealed. A preliminary objection has been taken by the respondent to the competency of this appeal inasmuch as the decision appealed against settles a fair rent within the meaning of Section 109A of the Tenancy Act. It is, on the other hand, argued that the decision involves a further question as to whether the tenure is one of which the rent can be enhanced. It is not necessary for us to decide this question as the view we take of the evidence in this case coincides with that taken by the Special Judge.
3. It is evident that at the time, of which we have got any historical knowledge, this tenure was created, the lards were not all cultivable and had to be re claimed, The rent was, therefore, fixed not on the quantity of the land let out but on the quantity of land that could be brought under cultivation by the talukdar. It in specifically mentioned In the kabuliyat of 1223 that the rent payable at that time was to be paid on the quantity of the land under cultivation until there was a measurement. We agree with the learned Special Judge in construing the document of 1249 and holding that it was a mere recognition of the original tenancy which was created in 1223.
4. It is argued by the learned Vakil for the appellant that the document should be treated as creating a new tenancy. But as we have said before the document makes no mention of the area let out nor of the rate but is simply a prayer by the tenant to substitute his name in respect of the holding known as mudafat Baidya Nath Chakrabutty. We are of opinion that the right of the landlord to claim enhancement is based upon contract as embodied in the kabuliyat of 1223 and that, according to its true construction, the rent is liable to enhancement.
5. The only point raised having failed the appeal is dismissed with costs.