(1.) The plaintiffs are the appellants in these four analogous appeals, which arise out of as many suits commenced by them for enhancement of rent under Section 105, Bengal Tenancy Act. The plaintiffs are co-sharer landlords to the extent of 10 annas 7? gds. share of the lands in dispute aid it is admitted that they have separate collection of their share of the rents. The defence of the defendants is of a threefold character. It is contended in the first place that the tenures having been in existence from the time of the Permanent Settlement, the rents are not enhancible under law, In the second place a presumption of fixity of rent is sought to be raised from uniform payment of rent under Section 50, Bengal Tenancy Act. Lastly, reliance is placed upon certain pottas which were executed in the year 1912, and which, the defendants allege, created mukarrari tenures with rents fixed in perpetuity.
(2.) The Assistant Settlement Officer negatived all the three contentions of the defendants and decreed the plaintiff's claim, fixing the enhanced rents in all the four cases, which were to take effect from 1338 B. Section There were appeals by the defendants to the Court of the Special Judge at Chittagong, and the learned lower Appellate Court reversed the decision of the Assistant Settlement Officer and dismissed the suits holding that the intention of the parties was to create putni taluks with rents fixed for ever. It is against these decrees of dismissal by the Special Judge that these second appeals have been filed, and Mr. Chandra Sekhar Sen, who appears in support of the appeals, has contended before us that the judgment of the Special Judge, Chittagong, cannot be sustained, there being clear error of law committed by him in construing the pottas.
(3.) The pottas are in identical terms, and we have examined the contents of the original documents and have gone through the translation supplied to us by the learned Advocates for the appellant. Confining ourselves to one of them, we find that it purports to describe the tenancy as kaimi sikmi taluk reserving a rent payable in two instalments. Paragraph 1 states that the rent would be paid in specified instalments by the tenant and his successors and in case of default the landlord would be entitled to sell the tenure twice every year under the provision of Regulation VIII of 1879. Paragraphs contains the stipulation that on excess lands being found, or khila lands having been brought under cultivation, there will be separate settlement in accordance with the rates of the present settlement and on refusal of the tenant to agree to the new settlement the landlord will be entitled to have the rent enhanced or else could take khas possession of the lands. Paragraphs contains certain restrictions regarding the cutting of trees, and para. 6 provides for payment of certain abwabs on occasions of marriage. The other clauses are immaterial and have not been relied upon by the learned Advocates on either side. Now the question arises as to whether upon a proper construction of the potta it can be said that the document created a mukarrari tenure. The proposition of law is well- established since 1869, when the case in Bamasundari V/s. Radhika 13 M.I.A. 248 : 4 B.L.R. 8 : 13 W.R. 11 : 2 Suther 11 : 2 Sar. 254 (P.C.) was decided by the Judicial Committee, that: A zamindar holding under the perpetual settlement is entitled to enhance the rents of all rent paying lands, unless he is precluded from doing so by a contract binding on him.