(1.) This is an appeal by the tenant defendants in a proceeding under Section 105 of the Bengal Tenancy Act instituted by the plaintiffs respondents for settlement of fair and equitable rent of a tenure. The tenancy is recorded as Kayemi Mokarari in the record of rights. The tenants consequently contended that though rent could be assessed in respect of excess lands, the rate of rent could not be enhanced. This contention was overruled by the Assistant Settlement Officer who assessed fair and equitable rent on the basis of the assets. On appeal by the landlords and cross-appeal by the tenants, the Special Judge remanded the case for further enquiry under Order 41, Rule 25, Civil Procedure Code. Ultimately, the Special Judge varied the order of the primary Court in favour of the landlords. On the present appeal, the tenants have urged that the tenure was held at a fixed rate of rent and consequently fair and equitable rent could not be assessed. When the appeal was heard on the 7 July 1922, it transpired that the terms of the tenancy were set out in a lease, dated the 24 June 1864 which was not mentioned in the judgment of the Courts below. Thereupon the following questions were remitted to the Special Judge for investigation on such evidence as might be adduced by the parties: (1) Whether the patta of the 12 Asar, 1271, corresponding to the 24 June 1864, is or is not genuine; (2) Whether it relates to the lands of the tenure now under consideration; (3) Whether it fixes the rates of rent (to be assessed on the different classes of land) in perpetuity; (4) Whether the rights of the parties were affected by the compromise of the 25 January, 1887 which was arrived at in the course of the suit instituted on the 27 July, 1886.
(2.) The Special Judge has now returned the record together with the following findings supported by full statement of reasons: (1) The patta is a genuine document; (2) The patta relates to the tenure now under consideration; (3) The patta fixes the rates of rent in perpetuity, though the aggregate rent may be readjusted from time to time on variation of the area; (4) The Mokarari nature of the tenancy was not called in question in the compromise and was not affected thereby; but the provision in the patta that enhancement of rent for increase in area should be based on the existing classification of the land into thirteen classes was abandoned and a new classification of the land into fifteen classes was introduced.
(3.) The entire appeal has now been re-argued before us, and two substantial points have emerged for consideration, namely, first, does the patta fix in perpetuity the rates of rent to be assessed on the different classes of land; and, secondly, to what extent have the rights of the parties under patta been affected by the compromise of the 25 January 1887.