KRISHNENDRA NATH SARKAR Vs. RANI KUSUM KAMINI DEBI

JUDGEMENT

(1.) THE suit was brought by the plaintiffs (respondents) as the zamindars and owners of certain lands, against the tenure holders thereof, to enhance the rent of the tenure created in favour of the latter under a jote pottah, dated 5th January 1870. The question for determination in the appeal is whether the rent of the said tenure was, as the appellants contend, fixed by the pottah in perpetuity or was, as the respondents contend, not fixed in perpetuity, but was liable to enhancement in accordance with the provisions of the Ben. Ten. Act, Act 8, 1885, Section 7, Sub-section 1.

(2.) THE said pottah, which was in the Bengali language, was granted by the predecessor of the respondents, and the material part of it upon which the rights of the parties depend is as follows: This pottah is granted in respect of the above-mentioned mouzah and the aforesaid jotes by fixing the annual rent thereof at Rs. 418-9-15 gundas in the Company's coin as per details in the schedule, and you also submit a kabuliyat of your own accord. You shall pay the rent year after year according to the kistibundi given in the schedule below. Should you make default in payment of the kists, you shall pay the re it in arrear with interest according to law. You and your sons and grandsons is, etc., in succession, will remain in enjoyment and possession by keeping the boundaries intact as they have been from before. All profits and losses shall be yours, and you shall on no account be competent to pray for a reduction of the rest. You shall abide by the survey and settlement of rent to be made by mo when necessary. If you shall make any plea of payment unsupported by dakhilas, the same shall be rejected. You shall not do any improper act, and should you do any, you shall be answerable for it. Should any new tax be imposed by Government, you shall pay the same separately in addition to the rent mentioned in the pottah.

(3.) IT appears to be common ground that prima facie the rent is liable to enhancement on the application of the landlord or to reduction on the application of the tenant, unless either of them has precluded himself by contract from claiming such enhancement or reduction respectively. The learned Subordinate Judge was of opinion that the grant was clearly intended to create: an absolute, hereditary and 'mokurari' tenure, inasmuch as it contains the essential words 'generation to generation', which have always been considered to have that effect. The expression 'the profit or loss is yours' clearly shuts out the idea of enhancement and indicates to show that the rent is fixed in perpetuity.