1. This appeal arises out of a suit for arrears of rent and also for enhancement of rent under Section 52, Ben. Ten. Act, under Section 30 of the same Act. The plaintiff claimed rent at the rate of Rs. 40 odd including Rs. 11 odd which had been kept in the kabuliyat as hajat. The Courts below gave a decree to the plaintiff for arrears of rent and also for enhancement under Section 52 but refused the plaintiff's claim for an enhancement under Section 30 and also his claim for rent including the amount of hajat. The two points which have been urged before us by the plaintiff-appellant are first, that the plaintiff was entitled to claim rent including the amount of hajat inasmuch as he had the right to withdraw the hajat portion of the rent; and secondly, that the plaintiff was entitled to an enhancement undar.S. 30; inasmuch as the defendants are occupancy raiyats and not tenure-holders as found by the Courts below.
2. As regards the hajat point, we are of opinion that the plaintiff landlord was, in the circumstances of the case, entitled to withdraw the remission. The hajat in the kabuliyat was described, as hal hajat indicating that the intention, of the parties to the document was. that the defendants should have the remission for; the time being or, in. other words, under the circumstances existing at the time the tenancy was created and that this remission or hajat arrangement was not to continue for ever under all circumstances. It appears that at the time the tenancy was created there were some lands which were not quite fit for cultivation and it appears also that at present all the landa within the jama have become fit for cultivation and are under cultivation. The intention of the parties evidently being that the hajat was allowed for the time being and only under the circumstances obtaining at the time the tenancy was ereated, the tenant defendant could not resist the plaintiffs' claim for withdrawal of the hajat unless he could show that there had been no change whatsoever in the circumstances that obtained at that time. As there had been a change in the circumstances, the landlord, in our opinion, was justified in withdrawing that remission or hajat.
3. As regards the second point which depends on the question whether the defendants were tenure-holders or occupancy raiyats, we are unable to disagree with the lower Courts in the view which they have taken of the matter. Our attention has been drawn by the learned advocate for the plaintiff-appellant to one or two passages in the kabuliyat which, according to him, indicated that the tenancy was an agricultural holding. But there Was the Record-of-Rights which was clearly against the plaintiff-appellant. In the Record-of-Rights the defendants were shown as tenure-holders and the lower appellate Court has come to a finding that the defendants actually settled the land comprised in the jama with a large number of sub-tenants who again, have been recorded in the Record-of-Rights as occupancy raiyats. There was nothing in the case which, in our opinion, could be said to rebut the presumption arising in favour of the defendants from the finally published Record-of-Rights, remembering especially the finding arrived at by the lower appellate Court to the effect that the defendants had actually settled the land with a number of a sub-tenants. We agree with the lower appellate Court that the defendants are tenure-holders and not occupancy raiyats and that being so, the plaintiff was not entitled to an enhancement of rent under Section 30, Ben. Ten. Act.
4. The result, therefore, is that the appeal is allowed in part. The plaintiff will have a decree for the arrears of rant at the rate of Rs. 40 odd including the hajat portion and he will also get an enhancement under Section 52, Ben. Ten. Act, his claim for enhancement under Section 30 being refused We make no order as to costs.
5. The cross-objection which Was not passed before us is dismissed.
6. I agree.