B.B. Ghose, J.
1. This appeal arises out of an application for settlement of fair and equitable rent under Section 105 of the Bengal Tenancy Act. The facts are these the landlord brought a suit for increase of rent on the grounds stated in Section 30 of the Bengal Tenancy Act. He alleged that he was entitled to increase of rent on the ground that the rent was below the prevailing rate and that there has been rise of price of staple food crops as well as on the ground of increase of area. The defendants pleaded that they had been paying rent at a uniform rate for more than 20 years' and relied upon the presumption of fixity of rent under Section 50, Sub-section 2 of the Bengal Tenancy Act, and alleged that this rent was not liable to be enhanced. They also denied that there was any increase of area in this jote. The Assistant Settlement Officer held that the presumption of Section 50 arose in the case of these defendants; and the present rate of the jama was held to be fair and equitable. On appeal by the plaintiff to the Special Judge it was urged on his behalf that under the terms of a kabuliyat executed by the predecessors of the tenants in July, 1844, the presumption of fixity of rent has been rebutted. The plaintiff also asked for additional rent for additional area. The learned Judge held that it was not improbable that the tenants were in possession from before the Permanent Settlement having regard to the fact that in the kabuliyat it was stated that they were in possession from before that date and he held that the kabuliyat did not rebut the presumption which arose in favour of the tenants under Section 50, Sub-section 2 of the Bengal Tenancy Act. With regard to the question of additional area the did not mention any, area of the jote, the plaintiff was not entitled to any addition a rent for additional area. In that view he dismissed the appeal.
2. The plaintiff has appealed to this Court and the questions raised on his behalf by the learned Vakil are, first, that the presumption has been rebutted by the kabuliyat having regard to the terms of the kabuliyat itself; and, secondly, even if not so, the landlord is entitled to assessment of fair and equitable rent having regard to the terms of the agreement embodied in. the kabuliyat. With regard to the first, point what is urged is this: that in the kabuliyat it is stated the tenants held a jama of Rs. 14 odd which was liable to enhancement or reduction in respect of Boro land at Kalsoor and it is argued that when the jama is described as liable to alteration, it cannot be held that the tenants held the lands at a fixed rate of rent from the time of the Permanent Settlement. But it seems to me that the learned Judge is right in holding that the right of the tenants falls within the provisions of s, 50 which enacts in Sub-section (1) that where a raiyat and his predecessors-in-interest have held at a rent or rate of rent which has not been changed from the time of the Permanent Settlement, the rent shall not be liable to be increased except as provided in that section. It does not mean that under the contract the rent was not liable to change, but it refers to the fact that whatever the contract might be, where the rent has not, as a matter of fact, been changed from the time of the Permanent Settlement, the conditions laid down in it should prevail, and under Sub-section (2) if the rent or rate of rent has not been changed during 20 years, a presumption may be made that the tenants held at that rent or rate of rent from the time of the Permanent, Settlement. Therefore, the statements in the kabuliyat that the rent is liable to increase or decrease cannot be used as an argument against the fact that the same rent or rate of rent has been paid from the time of the Permanent Settlement. This point, therefore, does not seem to me to be of any weight. But the next point urged appears to deserve better consideration. The argument is that under the stipulation in the kabuliyat the landlord is entitled to assessment of rent according to the terms of the contract. The stipulation runs thus: 'We shall be present, with the mahal would be measured, and pay rent at koljana rate, that is, rate paid by under tenants according to jamabandi, that will be prepared according to the prevailing rate, and pay the rent in accordance with the increased rate by executing a fresh doul.' This contract having been entered into long before the Bengal Tenancy Act, is not affected by the provisions of the Act as it does not fall within any of the classes of contract mentioned in Section 178, Sub-section (1) of the Bengal Tenancy Act. Under this stipulation the question is not one for additional rent for additional area or for enhancement of rent on any of the other grounds. The only thing that the landlord seems, to be entitled to is that he may ask for assessment of rent at the prevailing rate for the lands which would be found in the possession of the tenants according to the rate payable by the tenants of this class under the terms of the contract. Although it is mentioned that it is 'koljana' rate it seems that the tenant was not an under-tenant but he directly held under the landlord and his position must be that of an occupancy raiyat.
3. The case must, therefore, be sent back to the Court of first instance to find what fair and equitable rent should be assessed on the lands according to the prevailing rate for those lands in terms of the contract in the kabuliyat.
4. The respondents do not appear before us. As it does not appear that this view of the agreement in the kabuliyat was raised in either, of the Courts below, the plaintiff is not entitled to his costs either in this Court or in the Court of Appeal below.
5. The costs of the hearing in the first Court will depend upon the result.
6. I agree.