R.C. Mitter, J.
1. This appeal is on behalf of the defendants and it arises out of a proceeding under Section 105, Bengal Tenancy Act, started by the landlord plaintiff. The subject-matter of the suit is a tenure. It has been recorded in the family published Record of Rights as a permanent tenure with the incident of enhancebility of rent. Relying upon the entry in the Record of Rights the landlord instituted the proceedings under Section 105, Bengal Tenancy Act, for enhancement of rent under the provisions of Section 7 of the Act, his case being that it is a tenure which was created after the time of the permanent settlement. The defendants raised a defence which comes under the provisions of Section 105-A, Bengal Tenancy Act, namely that their tenure was a permanent tenure existing from the time of the permanent settlement and therefore there could be no enhancement of rent. After the defendants had pleaded in that manner the plaintiff took up the position that even if the tenure be proved to have been in existence at the time of the permanent settlement he is entitled to get enhancement under Clause (a) of Section 6, Bengal Tenancy Act, on the ground that he would be liable to prove from the terms and conditions of the grant that the rent of the tenure was liable to enhancement. For the purpose of proving the terms and conditions of the :grant, if the grant be proved to be at or before the time of permanent settlement, he, the plaintiff, proved a kabuliyat executed by the predecessors-in-interest of the defendants in favour of the predecessors-in-interest of the plaintiff on 20th May 1861. That kabuliyat has been marked Ex. 1. I will have to consider the terms and conditions of this kabuliyat both in relation to the contention raised about the applicability of Section 6, Clause (a), Bengal Tenancy Act, and in also considering the contention raised before me by Mr. Gupta appearing for the defendants-appellants that his clients are entitled to get the benefit of presumption as to the fixity of rent as provided for in Section 50, Bengal Tenancy Act.
2. For the purpose of proving that the tenure was in existence at the time of the permanent settlement the defendants produced a document Ex. D-1 and a decree (Ex. D) of the year 1854. The document Ex. D-1 shows that the tenure was in existence from the year 1836 at least. From these two documents the learned Assistant Settlement Officer came to the conclusion by drawing a presumption that the tenure was in existence at the time of the permanent settlement. He accordingly held that the plaintiff was entitled to enhancement only if he could bring his case under Clause (a) of Section 6, Bengal Tenancy Act. There was no occasion for the application of Clause (b) of that Section, because it was not the plaintiff's case that the defendants or their predecessors-in-interest had at any time received reductions of rent otherwise than on account of diminution in area. The learned Assistant Settlement Officer therefore proceeded to consider as to whether the case came within Clause (a) of Section 6. He held that there was no proof of any local custom by which the landlord is entitled to enhancement of rent. He accordingly proceeded to consider Ex. 1, the kabuliyat of the year 1861. That kabuliyat recites that there was a tenancy in the name of the predecessor of the executant of the kabuliyat and thereafter in their names in the sherista of the landlord bearing a rental of Rs. 74-9-0. This rental is mentioned in Ex. D-1 and also in the decree of the year 1851. Then it recites that there was a proposal by the landlord for re-measurement of the lands and for jamabandi. The kabuliyat then says that pending the measurement and re-adjustment of rent the executant of the kabuliyat agreed to pay for five years the sum of Rs. 79 odd, that is to say to pay an enhancement of about Rs. 5 per year. It further goes on to say that after the re-measurement of the land the tenant would attend the jamabandi and if he attends the jamabandi he will be bound to pay on the area found out on. measurement a rate of rent according to the rate of rent prevailing in the villages appertaining to the pargana. But, if he fails to attend at the jamabandi, any rent settled by the landlord in his absence would be binding on him. There is a further clause that after the expiration of the period of five years during which the rent of Rs. 79 odd was to remain current, the landlord would be entitled to resume in his khas possession such lands of the tenure as would be necessary for the construction of his kutcheribari or for the establishment of any hat or bandar. But in that case the tenant would be bound to pay the rent of the remaining lands at the aforesaid nirik, that is to say at the nirik or rate of rent prevailing in the villages appertaining to the pargana. This may be conveniently put as the pargana rate. The last clause in the lease is that after the five years the tenant would be bound to take a new settlement.
3. This last clause in my opinion means that the tenant would be bound to agree to a resettlement and readjustment of rent after the measurement which was then in contemplation had been completed, and that resettlement and readjustment of rent would be at, as I may call, the pargana rate. The learned Assistant Settlement Officer on construing this kabuliyat, Ex. 1, came to the conclusion that it proved one of the conditions under which the tenure was held, that condition being that the tenant would be bound to pay enhancement of rent. He accordingly held that although the tenure was in existence from the time of the permanent settlement by the condition of the grant the landlord was entitled to get enhancement. Then he proceeded to determine the amount of enhancement and in fixing the said amount he proceeded upon Sub-section 2 and 3 of Section 7, Ben. Ten. Act. I may mention here that the question about the genuineness of Ex. 1 was raised by the defendants before the Settlement Officer but he found the said document to be a genuine one. The defendants preferred an appeal to the Special Judge; and in the grounds of appeal they limited their objections to two matters. First of all they said that Ex. 1 was not a genuine document and secondly, if it was a genuine document it did not prove that enhancibility was one of the incidents of the tenancy. They did not take any ground in the grounds of appeal before the lower Appellate Court that if the grant of the tenure had been in existence from the time of the permanent settlement, the principle on which the rent had been assessed by the Assistant Settlement Officer was wrong, nor did they challenge the amount of assessment fixed by the Assistant Settlement Officer. The learned Special Judge however reversed the finding of the Assistant Settlement Officer as to the time of the creation of the tenure and came to the conclusion that the tenure came into existence in the year 1861 as a result of the kabuliyat Ex. 1. He concurred with the finding of the learned Assistant Settlement Officer in holding that the said document was genuine. Having recorded that finding he affirmed the decree made by the Assistant Settlement Officer.
4. The defendants have preferred the appeal to this Court. Mr. Gupta appearing for them raises three contentions before me. His first contention is that Ex. 1 has been misconstrued by the learned Special Judge and on a proper construction thereof it ought to be held that the tenure did not come into existence for the first time in the year 1861 and as the result of the settlement evidenced by Ex. 1; secondly that the finding of the Assistant Settlement Officer that the tenure was in existence from the time of the permanent settlement ought to be-affirmed and in that case the landlord is not-entitled to get enhancement on the principle formulated in Section 7, Ben. Ten. Act, but he can get such enhancement as is provided for by the terms and conditions of the grant, the material terms and conditions in this respect appearing in Ex. 1; thirdly, that in any view of the matter, since his clients have been paying rent at a uniform rate for more than 20 years, that rent, namely Rs. 79 odd, ought to be presumed to be fixed in perpetuity. It is necessary to examine these contentions.
5. I do see great force in the first contention of Mr. Gupta. Ex. 1 recites that the tenure was in existence before the date of Ex. 1, that is to say before 1861. The purpose of Ex. 1 was to enhance the rent provisionally till the measurement and jamabandi then contemplated by the landlord. These recitals that the tenure was existing from before 1861, contained in the kabuliyat Ex. 1, are well supported by Ex. D-1 and the decree Ex. D. By Ex. lithe lease for a term of years was not created; the last clause in Ex. 1 in my judgment means that there was not to be a fresh and a new lease after the expiry of five years but the rate is to be then readjusted. The tenure was one created from before 1861, was continuing in 1861 and was to continue thereafter and only the rent was to be revised after the said terms. I do not therefore subscribe to the view of the learned Special' Judge that 1861 was the date of the creation of the tenure which is the subject-matter of the proceedings under Section 105. That being so the lower Appellate Court must determine the question as to whether the tenure was in existence at the time of the permanent settlement or came into existence after that date. The direct evidence is that the tenure was in existence from 1836, at least that is proved by Ex. D-1. The Assistant Settlement Officer, from the fact that the tenure' was in existence in 1836, drew the inference that it was in existence at the time of the permanent settlement. Whether that inference is a correct inference and ought to be made in the circumstances of the case is a point which must be considered by the last. Court of fact, namely the Court of the Special Judge. The judgment of the lower Appellate Court must accordingly be set aside and the case remanded to that Court in order that it may consider the said finding of the Assistant Settlement Officer as to when the tenure first came into existence.
6. I would now take up the second and third contentions raised by Mr. Gupta, and although I have indicated just now what would be my order, it is necessary to make my observations upon the said points in order that the matter may be clarified and there may not be any difficulty at the time when the Court of Appeal below rehears the case after remand. I do not consider that there is any substance in the third point raised by Mr. Gupta. The kabuliyat Ex. 1 has been found by the lower Appellate Court to be a genuine document. That finding is binding on me and it must be taken to be the final finding of fact. That being so, Ex. 1 says that the tenant agreed to pay an enhancement of about Rs. 5. The landlord has proved enhancement in the year 1861. If the tenant wants to get rid of that enhancement, it is for him to show that that increase in the amount of rent was referable only to increase in area. The onus in this respect is on him. There is no such explanation offered by the defendants and therefore it must be taken that the rate of rent was enhanced in the year 1861 and the tenant at that time submitted to that enhancement. That alone would be sufficient to rebut the presumption of fixity of rent arising from uniform payment of rent for 20 years or more before the institution of the proceedings under Section 105, Bengal Tenancy Act.
6. The first part of Mr. Gupta's second contention cannot be accepted because the finding of the Assistant Settlement Officer as to whether the tenure was in existence at the time of the Permanent Settlement must be reconsidered not by me but by the lower Appellate Court; and in that respect I have already given my directions. The second part of Mr. Gupta's second, contention requires some consideration. That contention will only be relevant if the lower Appellate Court comes to a finding that the tenure was in existence at the date of the Permanent Settlement. If it comes to the finding that the tenure was created after the Permanent Settlement this further contention of Mr. Gupta would not require any consideration. In making the following observations I would accordingly proceed upon that footing, that is to say, what would be the position if the Court of Appeal below comes to a finding in agreement with the Assistant Settlement Officer that the tenure was in existence at the time of the Permanent Settlement. Mr. Gupta says that if the case comes within Clause (a) of Section 6, Ben. Ten. Act, the principle and the amount of enhancement must be regulated by the contract between the parties. The contract can be proved either by the production of the original grant or if the original grant be not forthcoming by such evidence from which the conditions of the grant could be inferred. In this case the original grant is not forthcoming. But Exhibit 1 had been used for the purpose of proving some of the conditions of the original grant. On its construction I agree that enhancibility was one of the incidents of the tenure whenever that was created. Ex. 1 being the only reliable evidence to prove some of the conditions of the grant, Mr. Gupta says that there is no doubt the right of enhancement in the landlord but the enhancement ought to be not on the principles formulated in Section 7, Ben. Ten. Act, but according to the terms laid down in Ex. 1, that is to say the landlord is only entitled to get such enhancement as the pargana rate would give him. In using the words 'pargana rate' I have used it in the sense in which it is used in Ex. 1. He further says that if the landlord is unable to prove what was the pargana rate according to the meaning assigned to it in Ex. 1 the landlord is not entitled to any enhancement at all and the amount of enhancement which the Assistant Settlement Officer has given and which proceeds upon the basis of Section 7, Ben. Ten. Act, must be set aside.
7. Now Section 7 says that where the rent of a tenure is liable to enhancement it would be enhanced according to the two methods indicated in that Section. But that section is made subject to any contract between the landlord and the tenant. If the tenure was in existence at the time of the Permanent Settlement the landlord was entitled to an enhancement of rent under Clause (a) of Section 6, because by Ex. 1 he has proved that enhancibility is one of the incidents of this tenure. Therefore this is a tenure which is liable to enhancement and if there had not been any contract to regulate the principle on which or the amount by which, the enhancement is to be given, the case would have come within either of the two methods of assessment of rent prescribed in Section 7, Ben. Ten. Act, notwithstanding the fact that the tenure was in existence from the time of the permanent settlement. But if the tenure was in existence from the time of the permanent settlement and if the enhancibility is one of the incidents of the said tenure and there was at the same time a contract between the parties regulating the amount of enhancement or the principle of enhancement, that contract must be given effect to and the two methods of assessment indicated in Section 7, which Section is expressly made subject to any contract between the landlord and the tenant, would not be the proper methods to apply. That is my construction of Sections 6 and 7, Ben. Ten. Act. In the kabuliyat Ex. 1, the right of the landlord to enhance is defined by a contract. It is that he is to enhance the rent according to the rate prevailing in the villages appertaining to the pargana. There is however another difficulty in Mr. Gupta's way. In the grounds of appeal in the lower Appellate Court this point was not raised by his clients.
8. As I have indicated above the two contentions raised by the grounds of appeal were : (1) that the kabuliyat Ex. 1 was not genuine and (2) that enhancibility was not one of the incidents of this tenure which has been found by the Assistant Settlement Officer to have been in existence from the time of the permanent settlement. No ground was taken that in the event of the Court holding that enhancibility was one of the incidents of this tenure and that it had existed from the termanent settlement the Assistant Settlement Officer had applied a wrong principle, namely the method indicated in Section 7 in arriving at the amount to be fixed; nor was any ground taken there that the enhancement ought to be according to the pargana rate. The contention which Mr. Gupta had raised before, me would involve an investigation into new facts not brought before the Court below namely what is the pargana rate. It is no doubt open to the lower Appellate Court to grant leave to the defendants-appellants to urge a point which is not taken in the memorandum of appeal. It is with such leave that this ground could be put forward. As I am remanding the case to the lower Appellate Court it would be for that Court either to grant or withhold leave with regard to the point which is the subject-matter of the second part of the second contention of Mr. Gupta, the point which I have indicated above. I cannot, and I would not, in any way fetter the discretion of the lower Appellate Court in the matter of leave. That Court may or may not grant leave to urge this ground; but as I have indicated, the occasion for considering whether leave to urge this point would be granted or not by the lower Appellate Court would only arise if the lower Appellate Court comes to a finding that the tenure has been in existence from the permanent settlement. 'With these observations I send the case back to the lower Appellate Court to be disposed of in accordance with the directions given above. The appeal is accordingly allowed, the decree of the lower Appellate Court is set aside and the case remitted to that Court. The parties will bear their respective costs in this Court. Future costs will abide the result.