S.K. Ghose, J.
1. The petitioner in this Rule purchased in an auction sale in execution of a mortgage decree a tenure belonging to opposite party No. 2 and situated in the District of Chittagong. His case is that the rent was settled in kaimi mokarari right by a registered lease dated August 15, 1835. He paid the landlord's fee and served notices as required by the Bengal Tenancy Act.
2. Thereupon, the opposite party wife is the landlord made an application under Section 26-J of the Act for enhanced landlord's fee and compensation alleging that the land comprised an occupancy holding. In the lower Court the purchaser of the tenancy relied on the aforesaid registered patta while the landlord relied on the Record of Rights in which the entry was to the effect that the holding was an occupancy one. The learned Munsif gave effect to the entry in the Record of Rights and decided in favour of the landlord. Hence this Rule.
3. A question has been raised as to whether in a matter like this, the Court should at all interfere under Rule 115, Civil Procedure Code. The Rule having been obtained by the petitioner I do not propose to examine this matter in detail and it would be sufficient to say that since the Munsif has chosen to exercise jurisdiction under Section 26-J, it is difficult to resist the conclusion that the matter is outside those subjects in which this Court would ordinarily interfere.
4. On the merits, the main point raised is whether the patta in question shows that the subject-matter of the lease was a permanent tenancy. If that is so, it must be accepted in place of the Record of Rights. It is pointed out that the learned Muneif did not decide the question as to whether the patta related to a different taluk, but the petitioner was not to blame because the order complained against is made on the assumption that the patta does relate to that land. The patta shows that the land was let out at an annual rent of Rs. 3 including cess and there is nothing to indicate that it was intended that the rent should be varied, On the other hand, the concluding lines are as follows:
On payment of rent you enjoy and possess (the land) in succession of sons and grandsons downwards. In these terms I execute this d(sic)imi kaimi patta, dated August IP, 1893.
5. The learned Munsif has remarked that it cannot be said that because the words 'daimi kaimi' occur it is a mokurari lease. But there are cases in which the Courts have relied on such terms as these in order to holdvthat permanency is indicated. See, for instance, the case of the Pyari Mohan v. Siddique Ahmad : AIR1928Cal531 , which was followed in Second Appeal No. 2445 of 1925. Stress is laid on the recital to the effect that if the demand by the superior landlord be ever increased, the lessee would be liable to pay proportionate amount and it is contended that therefore the rent cannot be fixed. But taking all the recitals into consideration it would be difficult to hold that because of this condition or to a possible liability it was intended that the rent should not be fixed. There are many cases in which clauses occur making the tenant, liable to pay an additional amount on the happening of a certain contingency. For instance, see the cases of Golam Rahaman v. Guru Das 76 Ind. Cas. 588 : A.I.R. 1923 Cal. 505 : 38 C.L.J. 350, Nabendra Kissore Ray v. Chowdhury Mian : AIR1931Cal265 and Ambika Charan v. Basanta Kumar : AIR1932Cal72 . It seems to me that the recitals in the patta do lead to the conclusion that it was intended that the tenancy should be permanent. That being so, the learned Munsif was in error in giving effect to the Record of Rights. The Rule must be made absolute with costs, hearing-fee one gold mohur.