1. This appeal arises out of a Suit for arrears of rent and also for enhancement of rent under Section 52 of the Bengal Tenancy Act and 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 under Section 30, inasmuch as the defendant is an occupancy raiyat and not a tenure holder 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 defendant 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 lands 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 created, the tenant-defendant could not resist the plaintiff's claim for withdrawal of the hajat, unless she 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 the remission or hajat.
3. As regards the second point which depends on the question whether the defendant was a tenure holder or occupancy raiyat, 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 defendant was shown as a tenure holder, and the lower Appellate Court has come to a finding that the defendant actually settled the land comprised in the jama with a large number of subtenants 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 defendant from the finally published Record of Rights remembering specially the finding arrived at by the lower Appellate Court to the effect that the defendant had actually settled the land with a number of sub tenants. We agree with the lower Appellate Court that the defendant is a tenure-holder and not an occupancy raiyat, and that being so, the plaintiff was not entitled to an enhancement of rent under Section 30 of the Bengal Tenancy Act.
4. The result, therefore, is that the appeal is allowed in part. The plaintiff will have a decree for the arrears of rent at the rate of Rs. 40 odd, including the hajat portion and he will also get an enhancement under Section 52 of the Bengal Tenancy Act, his claim for enhancement under Section 30 being refused. We make no order as to costs,
5. The cross-objection, which was not pressed before us is dismissed.
6. I agree.