JUDGMENT
Suhrawardy, J.
1. This appeal is by the defendant in a suit for rent in respect of a holding in which the plaintiff claimed rent for a period of four years at the old rate and further claimed enhancement of rent on the ground that in consequence of improvement made at his cost there had been an increase in the productive power of the land. The trial Court held that the value of the land had increased on account of certain improvements made by the plaintiff but that he was not entitled to claim enhanced rent on the ground that the defendant succeeded in raising the presumption in his favour under Section 50(2), Ben. Ten. Act. The plaintiff appealed and the learned Additional District Judge held that in this particular case the tenant was not entitled to the presumption under Section 50(2), Ben. Ten. Act though he had proved payment of rent at a uniform rate for a period of more than 20 years. The reasoning’ adopted by the learned Judge is this : In 1890 this Jote along with another was sold in execution of a rent decree by the plaintiff and purchased by the defendant; in the sale proclamation the property sold was described as a jote; a jote ordinarily means an occupancy holding; and an occupancy holding is under the law a holding the rent of which is liable to-be enhanced ; the defendant having purchased the property as a jote must accept that position and cannot now turrj round and say that he is a raiyat at fixed rate. In other words the learned Judge, though he has not used that expression is of opinion that from the description of the property in the proclamation of sale under which he has purchased it, he is estopped from pleading, that the right he purchased was anything different from the right of an occupancy holding. This view, in my opinion, is clearly erroneous. It has been conceded before us by the learned vakil for the respondent, and in my opinion rightly that no question of estoppel arises in this case. The holding was described as a jote in the sale proclamation by the plaintiff and the defendant has purchased the interest of the defaulting tenants whatever that was. The decree-holder may in a proper case be bound by the description given by him in the sale proclamation but to my knowledge no case has gone to the extent of holding that because the purchaser purchased the property described in a particular way in the sale proclamation, he cannot claim a higher or different right which the judgment-dabtor actually had and which the purchaser had really purchased.
2. Now, with regard to the assumption made by the learned Judge that the term “jote,” ordinarily means occupancy holding, there is high authority to hold that it is not so. In Midnapore Zemindary Co. v. Naresh Narayan Singh A.I.R. 1922 P.C. 241 the Judicial Committee observed:
Jote is a general term and it is not necessarily equivalent to a “raiyati jote.
3. The same view was taken in this Court in Rajani Kanta v. Yusuf Ali [1917] 21 C.W.N. 188 and Nawab Ali v. Hemanta Kumari [1904] 8 C.W.N. 117. These oases have been attempted to be distinguished on the ground that the holdings seferred to in them consisted of more than one hundred bighas and therefore, the presumption under the law was that they were tenures. The interpretation of the term “jote” in those eases does not seem to have been affected by the fact that the holdings under consideration were more than 100 bighas. After holding that the term “jote” did not necessarily mean a raiyati holding the Courts proceeded to determine the nature of the tenancy in those cases and having found that the area was over 100 bighas they allowed the presumption of law to be raised in favour of their being tenures.
4. Even if the interest sold in 1890 were that of a raiyati at fixed rate one would not expect any other description of the land except what was given in the sale proclamation, namely, that it was a jote. If “jote” means a holding in its general sense as it ordinarily does, the interest of a raiyat at a fixed rate will also be called a jote and it is too much to expect from the landlord that in the sale proclamation he would admit that the jote he was selling was held by the last tenant at a rent fixed in perpetuity. The mere description of the property sold in 1890 as a jote-right does not in my opinion support the case of the plaintiff even if the defendant is held bound by it. It is still open to the Court to investigate as to what was sold and what was purchased by the defendant.
5. The lower appellate Court has observed and it seems hat its decision was to a great extent influenced by the view he took of the law, that a raiyat at a fixed rent or rate of rent cannot be an occupancy raiyat, though an occupancy raiyat by a subsequent grant can acquire the status of a raiyat at fixed rent. This is not the law as at present settled by the recent decisions of this Court. In the case of Dulhin Gulab Koer v. Balla Kurmi [1898] 25 Cal. 744 decided by a Bench of five Judges it was held that the settlement officer was right in giving effect to the presumption that the raiyats meaning ordinary raiyats were holding at fixed rates of rent and in recording them as raiyats holding at fixed rates. The learned Judges agreed with the observations made by Ameer Ali, J., in the case at the stage at which the case was before the Division Bench; and one of the observations made by that learned Judge will be found at p. 749 of the report:
Any raiyat, therefore, by whatever name he may be called if he pleads and proves the partoular ‘state’ of facts provided in Section 50 is entitled to its benefit.
6. The last word upon the subject has been said in the case of Sarveswar Patra v. Bejoy Chand Mahatab A.I.R. 1922 Cal. 287 in which it was held that the raiyat holding land at a fixed rent may acquire a right of occupancy and claim protected interest under Section 160, Ben. Ten. Act. Richardson, J., went into the history of the law on the subject and came to the conclusion that there is nothing in the law to prevent a raiyat at fixed rate acquiring a right of occupancy in other words both the rights may be combined in the same person. Nor does the law make it impossible for an occupancy raiyat to obtain the right of a raiyat at fixed rate. These decisions and the other pronouncements on this subject in various cases of this Court created a class of raiyats not enumerated in Section 4, Ben. Ten. Act, namely, occupancy raiyats holding at a fixed rent or rate of rent. Whether an occupancy raiyat who is proved to have held at a fixed rent or rate of rent from the time of the Permanent Settlement may be elevated to the status of a raiyat at fixed rate is not for our present purpose to discuss. But it cannot be disputed that the law recognizes a raiyat with such rights. In the proviso to Section 37, Clause (4), Act 11, 1859, one of the protected interests described in the section is that of a raiyat having a right of occupancy at a fixed rent. Reference may also be made in this connexion to the decision in Lakhmi Charan Shaha v. Hamid Ali [1918] 27 C.L.J. 284 where the same view has been taken.
7. The learned Judge in support of his view has referred to several cases which apparently have no bearing on the point under discussion. In Jagabdndhu Shaha v. Magnamayi Dasi [1916] 44 Cal. 555, the case was not governed by the Bengal Tenancy Act, but was decided upon the general principles of law. In that case the tenants succeeded in proving uniform payment of rent for a period of 40 years. The learned Judges held that without further proof of the origin and nature of the tenancy it would not be possible as a matter of law to draw an inference from this fact alone that at the inception of the tenancy the rent was fixed in perpetuity because the forbearance of the landlord in suing the tenant for a period of 40 years might be due to various reasons not inconsistent with the tenancy being an ordinary one. In Guru Charan Nandi v. Sarah Ali [1919] 23 C.W.N. 1041 there is a clear finding that the tenancy was created 40 years before the institution of the suit and, therefore no presumption could be drawn from the fact of uniform payment of rent for that period. The learned Judge has also referred to two cases from 26 C.W.N. one being the case of Bamandas Vidyasagar v. Shadhu Manjhi [1921] 26 C.W.N. 945 and the other Prosunna Kumar Sen v Durga Charan A.I.R. 1922 Cal. 146. I fail to see that these cases have any connexion with the point involved in the present case. It was held in those oases that where the Record-of-Rights have been finally published the tenant is precluded by Section 115, Ben. Ten. Act, from claiming presumption under Section 50 of that Act. The case before us is not based on the Record of Rights and there is no presumption one way or the other arising from it.
8. It has been contended before us that the finding of the lower appellate Court that the presumption under Section 50, Ben. Ten. Act., has been rebutted by the sale certificate in this case is a finding of fact. I am unable to agree with this contention. It seems to me to be arguing in a vicious circle. The Judge held that the defendant was bound by the description of the holding as a jote in the sale-certificate and then he said that the production of the sale-certificate rebutted the presumption under Section 50 inasmuch as the sale certificate describes the holding sold as a jote.
9. The result of a careful consideration of the facts of this case and of the law is that the defendant though he may be an occupancy raiyat is still entitled to claim the presumption under Section 50, Ben. Ten. Act., and since he has proved in this case that he has paid rent at a uniform rate for more than 20 years he is entitled to such presumption and the question which has been put in the judgment of the learned Judge namely, whether in consequence of the description of the holding as an ordinary jote in 1890 in the defendant’s title-deed, the defendant is entitled to the benefit of the presumption under Section 50, Ben. Ten. Act., must be answered in the affirmative.
10. In the above view this appeal is allowed. The judgment of the lower appellate Court is set aside and that of the Court of first instance restored with costs in all Courts.
Graham, J.
11. I agree.
