1. The appellant is a defendant in a suit for the recovery of enhanced rent. It has been conclusively determined that he is a tenure-holder and not a raiyat and the only question that remains for decision is, whether the rent he pays is liable to enhancement. The Subordinate Judge of the first Court at Midnapur held that the rent was enhancible and dismissed the suit. This decree has been reversed by the District Judge.
2. From the decree of the District Judge the present appeal has been preferred. Among the points urged in opposition to the appeal is the contention that the conclusion of the District Judge is on a question of fact and so it cannot be questioned in an appeal from appellate decree.
3. To appreciate this argument it is necessary to observe what the conditions are which bear on the question of enhancibility of rent. Variableness is the normal condition and even the naming of a sum is not conclusive against this.
4. Each case, however, has to be judged by its own peculiar circumstances. If there is no document, the conduct of the parties, especially where it extends over a long period of time, may justify an inference as to the terms on which land is held.
5. But where there is a document defining the right of the pirties, its terms must, in the first instance, be investigated.
6. Here the rights of the parties must be determined by the terms of the documents, and this is a matter of construction which is open to this Court on second appeal.
7. There are several documents and the first is dated as far back as 1824. It is expressed to be granted to Gopi Nath Mittra, 'a tenant, for clearing jungle.' The jama is at the rate of 5 annas 7 gundas per bigha and the land leased and the total rent was said to be Rs. 66-14. The lease, however, provided for remissions, which had the effect of making the rent progressive until in 1237 (1830) it was payable at full rate, Rs. 66-14. This, it was agreed, should be paid year by year as the rent of the 200 bighas. And then the document proceeds as follows: You shall continue to enjoy the jungle land with great felicity on bringing the same under cultivation, and causing the same to be held in jote by other persons, according to the former boundaries thereof. If you bring or cause to be brought under cultivation any land in excess of this quantity of land, then you shall separately pay rent of the land that may be found to be excess by measurement, at the rate of 5 annas 7 gundas per bigha as stated in this pott a This patta is granted to you in respect of the land, with the exception of the hasil and pakan lands included in former jama but lying within the aforesaid boundaries. You shall not get any remission (in rent) on account of drought, inundation, destruction of crops by worms, jungle or waste lands.' This then is the first document we have to construe and in asscertaining its meaning the Court must have regard to every fact a knowledge of which may conduce to the right application of the words used.
8. Though it may be that the construction placed on no document is an authority for the construction of another, yet we have the sanction of the Privy Council that it is relevant to the construction of the lease now under consideration that it was granted with a view to the reclamation of jungle land that for the first few years the amount of rent payable was progressive, and that then a fixed-rate was named. Soorasoonderee Debia v. Golam Ali 19 W.R. 141 :-15 B.L.R. (P.C.) 125n. This decision has been accepted as furnishing a test in later cases, and among them it will suffice to mention Huro Prasad Roy Chowdhury v. Chundee Churn Boyragee 9 C. 505 : 12 C.L.R. 251.
9. In view of the salient, facts of this case I hold that on the true construction of the lease of 1824 the rent payable by the tenant is not enhancible in the manner claimed. Of the five remaining leases four appear to be in the nature of grafts on that with which I have dealt, and each to be a recognition the additional land has come within its scope as was contemplated from the first. To each of these the same considerations apply and I hold that the rent in each case is not enhancible.
10. But to the 6th and last lease none of the considerations which have influenced the construction I have placed on the five earlier ones apply, and I can find no sufficient ground for excluding the normal condition of variableness. In the case of the last lease, therefore, the rent is enhancible.
11. We accordingly set aside the decree of the lower Appellate Court with costs throughout to be paid by the respondent. The case will go back to the lower Appellate Court for the rent of the 6th lease only to be fixed in accordance with these remarks and for a decree.