1. Plaintiffs are the appellants and this second appeal is against the judgment and decree of the Additional. District Judge of Faridpur, dated the 9th May, 1922, affirming the decision of the Munsif.
2. The suit out of which this appeal arises was brought by the plaintiffs for recovery of arrears of rent in respect of a certain holding bearing a jama of Rs. 25-10-6 per year and for enhancement of rent under Section 30, Clause (6) of the Bengal Tenancy Act.
3. Defendant No. 1 alone contested the suit and relied upon the entry in the Record of Rights and pleaded that under Section 50 of the Bengal Tenancy Act, he was entitled to the presumption that the tenancy was created before the Permanent Settlement and as such not liable to enhancement.
4. The landlords, on the other hand, relied upon a kabuliyat executed by the predecessor of the defendants on the 9th Aswin 1301 and they contend that a new tenancy was created by it inasmuch as by this kabuliyat the landlords recognised the purchaser of a non-transferable occupancy holding and imposed fresh terms by which future enhancement was provided for.
5. The Munsif dismissed the claim for enhancement and the learned Additional Judge for the reasons given by the Munsif dismissed the appeal by the plaintiffs. The judgments of the Courts below are based on the decision in the case of Abhoy Sanker Mozumdar v. Rajani Mandal 47 Ind. Cas. 359 : 22 C.W.N. 904 : 29 C.L.J. 371.
6. In this second appeal the learned Vakil for the appellants contended that a new lease was created with the condition that the rent would be liable to enhancement in future. The real and only question in this case is what is the true and proper construction of the kabuliyat, dated 9th Aswin 1301. Was it merely a confirmatory lease with the old tenancy or a tenancy with new and additional conditions? As the recognition by the landlord of the sale of a nontransferable occupancy right was optional and the addition of new terms would be justifiable on any fresh terms agreed between the parties, it remains to be seen whether there were such additional terms embodied in the contract.
7. It seems to me clear that there was a contract for variation of the rent at the rates specified for operation in future.
8. It will appear that at the rates mentioned for the future even on the area then existing there would be an enhancement of the rent. Instead of asking for an immediate increase in the rent, the deed provided that the enhancement would come into force upon the true area when ascertained by a future measurement. I have no hesitation in saying that this is what this contract clearly provided and it was upon this additional term that the landlord recognised the purchaser of the predecessor of the defendants as a tenant of the occupancy holding purchased by him. The amalgamation of two shares separately purchased was also an additional condition of the new lease.
9. The passage cited from the judgment of Mr. Justice Teunon in the case of Abhoy Sanker Mazumdar v. Rajani Mandal 47 Ind. Cas. 359 : 22 C.W.N. 904 : 29 C.L.J. 371 lays down nothing which prevents the ascertainment of the conditions upon which the new tenancy was created in any particular case. Each contract must be construed according to its own terms and in the circumstances of that case. Cases may be helpful in so far as they lay down general principles but cannot be direct authority as to the construction to be put upon the deed before the Court in another case. I am, therefore, of opinion that the appeal succeeds. The judgments and decrees of the Courts below are discharged and the case sent back to the Munsif for the determination of the amount of rent payable by the defendants. The defendants must pay the costs of this appeal. As to the costs of the suit the trial Court will be at liberty to make such order as the final determination of the suit requires.