1. This is an appeal by the plaintiff in a suit for arrears of rent. The rent is claimed in respect of a nimhowla tenure, which lay originally within the District of Backerganj but is now within the' District of Khulna and which, it is alleged, is held by the defendants under the plaintiff. The defendants resist the claim substantially on the ground that they have transferred the tenure by conveyances and are no longer liable for the rent. The Court of first instance held that the defendants had failed to establish that the tenure was transferable and were consequently responsible for the rent. On appeal the Subordinate Judge has taken a contrary view and has come to the conclusion that nimhowla tenures in Backerganj are transferable. In our opinion the view taken by the Subordinate Judge is correct.
2. The Subordinate Judge has, in support of this view, referred to the cases of Huromohun Mookerjee v. Ranee Lahin Monee Dasee 1 W.R. 5 at p. 6 and Juggut Chunder Roy v. Ramnarain Bhuttacharjee 1 W.R. 126. In the first of these cases, Kemp and Glover, JJ., stated that 'various description of tenures other than mokarari can be sold and are sold every day,', and, as illustrations, mentioned the howlas and nimhowlas of Backerganj and the jotes of Rangpore. In the second case, Campbell and Glover, JJ.. held that nimlowla tenures of Backerganj, even though not held at a fixed rent, were transferable tenures. The same statement is to be found in the case of Mussamut Taramonee Dassee v. Birressur Mozoomdar 1 W.R. 86, where Kemp and Glover, JJ., stated that jotes of Rangpore and howlas and nimhowlas of Backerganj are transferable and heritable.'
3. On behalf of the appellant it has been Contended, however, that a contrary view was taken by the Full Bench in the case of Ajoodhya Pershad v. Mussamut Imam Bandi Begum 7 W.R. 528 : B.L.R. Sup. Vol. 725 : 2 Ind. Jar. (N.S.) 192. That case, in our opinion, has no bearing upon the question raised before us. It was there decided that, if a tenure was not transferable, the mere fact that the tenant had gained a right of occupancy therein under Section 6 of Act X of 1859 by continuous occupation and cultivation for 12 years, did not make the tenure transferable. No such question calls for our decision here. We are of opinion that the Subordinate Judge very properly took judicial notice of what was mentioned as a well-known fact half a century ago in the cases of Haromohan Mukerjee v. Ranee Lallan Mani Dasi 1 W.R. 5 at p. 6 and Jagat Chandra Roy v. Ram Narain Bhattacharjee 1 W.R. 126. His conclusion, is 'always supported by Section 11 of the Bengal Tenancy Act read with the definition of the expression permanent tenure' contained in Clause (8) of Section 3. 'Permanent tenure' means a tenure which is heritable and which is not held for a limited time. The tenure in the case before us may be taken to be 'heritable, because the plaintiff seeks to hold' the heirs of the original tenant responsible for the rent. It is also prima facie not held for a limited time, for there is no suggestion on the present record on behalf of either the plaintiffs or the defendants that the tenure was created for a fixed period. Consequently the tenure is a permanent tenure within the meaning of Clause (8) of Section 3, and such a tenure is by Section 11. made capable of transfer and bequest in the same manner and to the same extent as other immoveable property.
4. It has been argued, however, on behalf of the appellant that the question is concluded by a consent decree made on the 30th June 1904 between the parties to this litigation. That decree, in our opinion, is of no assistance to the appellant. The decree was made in a suit for rent and does not set out all the terms of the compromise between the parties'. It says merely that at that time the present defendants consented to accept liability for payment of rent for the particular years for which rent was then claimed. The question raised before us is undoubtedly not concluded by that decree.
5. Reference has also been made to an earlier rent-decree of the 15th July 1882 which contains a recital that in the plaint the landlord described the tenure as non-transferable. There was, however, no adjudication upon this point, for the obvious reason that the decision of the question was not necessary for the purposes of the suit for rent.
6. We hold accordingly that the Subordinate Judge rightly came to the conclusion that the tenure was transferable) and that as the transfer had been notified to the plaintiff he was not entitled to claim rent as against the original tenants. The decree of the Subordinate Judge is consequently affirmed and this appeal dismissed.