1. This rule was issued on the opposite party to show cause why an order made by the Subordinate Judge of Maldah allowing the landlord, the present opposite party, the amount of Rs. 2590 odd claimed by him as the balance of transfer fees under Section 26-J, Bengal Tenancy Act, should not be set aside. The material facts are as follows: The landlord, opposite party in this rule, is the proprietor of a certain Mehal in the Maldah Collectorate. Under that Mehal are four tenancies which had been settled at the time when the land-lord's estate was under the management of the Court of Wards with the predecessor-in-interest of the Mathurapur Zamindary Co. Ltd. The pottas relating to these tenancies described them as jotes. During the Deara Settlement in 1919 they were described as permanent tenures liable to enhancement of rent. In 1928 the landlord brought suits for enhancement of rent and the decision in those suits finally was that the tenancies were raiyati holdings and not tenures. During the pendency of the litigation the Zamindary Company transferred the tenancies to the petitioner in this rule and the landlord's fee was calculated under Section 12, Bengal Tenancy Act, at two per cent. of the annual jama. After the subsequent decision that the tenancies were raiyati holdings, the opposite party here filed an application claiming Rs. 2590 odd as balance of the transfer-fees due to him and calculated five times the annual jama of the holdings. His allegation was that the tenancies were ordinary occupancy holdings and the defence to his claim was that the holdings were not ordinary occupancy holdings but mokarari holdings, a question incidentally which was left open in the previous litigation. The learned Subordinate Judge in deciding this question observed:
It is agreed on all hands that the answer (to the question whether the tenancies are ordinary occupancy holdings or mokarari holdings) will depend upon the true construction of the terms of the written leases of 1885.
2. On examination of the terms of those pottas and on consideration of certain other matters he came to the conclusion that the tenancies were ordinary occupancy holdings and on that footing held that the landlord petitioner was entitled to the amount he claimed. Against that decision the present rule has been obtained. We are of opinion that the rule should be discharged for two reasons. In the first place, the application purports to be one under Section 115, Civil P.C. Now the powers of interference conferred by that Section can be exercised when the Subordinate Court in question appears to have exercised a jurisdiction not vested in it by law, or failed to exercise a jurisdiction so vested, or acted in the exercise of its jurisdiction illegally or with material irregularity. Now it cannot be contended here that the Sub-ordinate Judge exercised a jurisdiction not vested in him by law or failed to exercise a jurisdiction so vested, nor can we think, as he said, that he acted illegally or with material irregularity in deciding the question before him on the materials before him in the manner indicated in his judgement. The first difficulty then in the way of the petitioner is that there is no legal ground for interference under Section 115, Civil Procedure Code.
3. On the merits of the application we think that the view taken by the learned Judge in the Court below as to the true construction of the documents is the correct view. We have also considered the terms of these documents and for reasons which are stated at length by my learned brother, with which I entirely agree, we hold that the construction placed on the pottas by the Court below cannot be challenged, In this view of the matter the rule fails and is discharged with costs; hearing fee one gold mohur.
Nasim Ali, J.
4. I agree that this rule should be discharged. The material portion of the potta is as follows:
You are enjoying and possessing 800 bighas of land included within the boundaries given below...on payment of rent according to the terms of a former potta there being condition in the said potta for assessment of jama after survey every year. A second potta on the terms mentioned below is demanded on the said previous potta being set aside whereupon I execute this potta and promise that Rs. 150 is fixed (Dhariya) as the annual rent (Nirikh) for 800 bighas of land mentioned above at the rate of three annas par year per bigha. Besides the same, you shall pay separately road cess and public works cess which are in force and any other rate which may be demanded by the Government in future. You shall pay into my mal-katchery the aforesaid settled (Niruplta) rent year after year, kist by kist, in accordance with the kist mentioned below, and shall take dekhilas and shall remain enjoyer and possessor with son, grandson and others in succession with great felicity.... You will not be entitled to make objections for reduction of rent on any ground. You shall make improvement in the said land for your own profit by preparing residential house, or garden, etc, or by any other manner whatsoever. I shall not be competent to increase rent for that ground.
5. The learned advocate appearing on be-half of the petitioner placed much reliance on the words (Nirupita) and (Dhariya), in the lease and also on the stipulation that the lessee was to pay separately road cess, public works cess which are in force and any other rate which might be imposed in future and contended that these elements were conclusive to show that the rent was fixed in perpetuity. He also laid much stress upon the word (Nirikh) used in the lease and invited our attention to certain decisions of this Court. The interpretation put upon one document by the Court is not of much assistance in interpreting another document unless the terms are exactly similar. In the present case the learned Subordinate Judge has pointed out certain facts which, to my mind, clearly indicate that the rent of the land was not fixed in perpetuity. The lessee admittedly was in possession of the land from before on the basis of a registered potta which was bemeadi and in which rent reserved was variable and there were different rates for different classes of land. By the new potta what was originally uncertain was made certain and a flat rate of rent, namely 3 as, per bigha, was settled, The lessor was the manager of the Court of Wards. In the lease it is not stated that the rent is fixed in perpetuity. There is no mention of payment of any selami in the lease. There is no statement in the lease that the Board of Revenue by any special order exempted the payment of selami or that it granted permission to the manager to fix the rent in perpetuity, Prima facie the rent is liable to enhancement on the application of the landlord or to reduction on the application of the tenant. It was contended by the learned advocate for the petitioner that in this particular case the landlord precluded himself, though not expressly but by necessary implication by the 'terms of the lease, from claiming any enhancement. It is true that there are words 'generation to generation' (Putrapoutradicrame) in the lease but that by itself is of no significance, inasmuch as the tenancy was a heritable tenancy from before and this stipulation is perfectly consistent with the tenancy being a heritable occupancy holding, though its rent may not be fixed in perpetuity. Further there is an express covenant in the lease that the lessee will not be entitled to claim reduction of rent on any ground. The tenant precluded himself by express contract from claiming any reduction. If the landlord also intended to give up his right to claim enhancement, why was it then that no such stipulation was expressly mentioned in the potta? There is one other significant fact. The landlord abandoned his right to claim enhancement of rent only on the ground of improvements made by the tenant. That is an indication to show that only in such a contingency the landlord would be precluded from claiming enhancement of rent.
6. I therefore agree with my learned brother that rent of the tenancy in question was not fixed in perpetuity.