Mookerjee, J.:— This is an appeal by the landlord in a proceeding under Section 105 of the Bengal Tenancy Act, for enhancement of rent. The tenant pleaded that the rent was fixed in perpetuity and this contention has been accepted by both the Courts below.
2. On the present appeal, stress has been laid upon the observation of Sir James Colvile in Bhamasoondery Dassyah v. Ridhika Chowdhrain(1) that a suit to enhance rent proceeds on the presumption that a zemindar holding under the perpetual settlement has the fight, from time to time, to raise the rents of all the rent paying lands within his zemindary, according to the puvganah or current rates unless either he is precluded from the exercise of that right by a contract binding on him, or the lands in question can be brought within one of the exemptions recognized by Bengal Regulation VIII of 1793.
3. Let it be conceded that the burden thus lies on the tenant to establish that the landlord is precluded from exercising right to enhance rent by a contract-binding on him.
4. Fortunately, we have in this case the contract of tenancy dated the 3rd September, 1861, which governs the rights of the parties. The document was written in Ooriya character, possibly, by a half literate scribe. The document states that the tenant, the grantee, would pay the Thika Mokra rent of Rs. 10-12 at the rate of 4 as per bight and 4 annas for julkur rent of Bichaguru tank, in all Rs. 10. There has been some discussion at the bar as to the meaning of the expression Thika Mokra.
5. We feal no doubt that the word thika, was used to indicate the creation of a tenancy and that the word written as Mokva by the Ooriya scribe is in reality mokarari, indicating that the rent was fixed in perpetuity. There can be no question that although no premium was paid, the tenancy was permanent, as the grantee was authorised to cultivate from generation to generation. But reference has been made by the appellant to the decision in Ramnarain Singh v. Chota Nagpur Banking Association(2) where it was stated that a substantial premium for a lease is one of the surest indications of its permanent character, it does not follow however that the absence of evidence to show payment of premium is one of the surest indications that the grant is not permanent.
6. We need not thus place reliance upon the clause which provides that there should be no payment over and above the rent, because this may have reference to illegal exaction. The document taken as a whole indicates, in our opinion, that under this contract of tenancy, the rent was fixed in perpetuity and that the application for enhancement has been rightly dismissed.
7. The appeal is dismissed with costs.
8. Appeal dismissed.