JUDGMENT R.C. Mitter, J. - These two Rules have been obtained by the purchaser of a holding against whom an order has been passed by the learned Munsif, on an application by the Opposite Party No. 1 under sec. 26J of the Bengal Tenancy Act. The Petitioner before me purchased portions of the holding by two conveyances and. therefore, there were two applications under sec. 26J and two Rules before me. The learned Munsif found that the Opposite Party No. 1 is entitled to get Rs. 114 as the balance of the landlord's fee in the one case, and Rs. 79 in the other case. In the first case he allowed Opposite Party No. 1 a sum of Rs. 57 by way of damages, and in the second case a sum of Rs. 40. 2. It is admitted that Rs. 39-18-15 g. is the rent which was being actually realised in respect of the holding at the date of the transfer. The Petitioner said that the holding was at a fixed rent and, therefore, he is not liable to pay the landlord's fee under the provisions of sec. 26D of the Bengal Tenancy Act. For the purpose of supporting his case, the transferee produced dakkilas for more than 20 years, showing uniform payment of rent at Rs. 39-13-15 g. In this view of the matter, he was prima facie entitled to the benefit of the presumption of sub-sec. (1) of sec. 50 of the Bengal Tenancy Act. For the purpose of rebutting the said presumption the Opposite Party No. 1 produced two documents. The first is a plain copy of a kabuliyat from a kabuliyat Book kept by him, which has been marked Ex. 1. The second document is a certified copy of a registered conveyance dated 25th September, 1880, by which the predecessor of the transferee before me purchased the same. This document has been marked Ex. 2. In both these documents it is recited that the jama was Rs. 39-0-19 g. The kabuliyat is dated 1269 and the conveyance 25th September, 1880. Exhibit 1 could only be admitted in evidence if the loss of the original could be proved. Only one witness was examined on behalf of the Opposite Party No. 1 for that purpose, but he could not prove destruction of the original. 39-0-19 g. The kabuliyat is dated 1269 and the conveyance 25th September, 1880. Exhibit 1 could only be admitted in evidence if the loss of the original could be proved. Only one witness was examined on behalf of the Opposite Party No. 1 for that purpose, but he could not prove destruction of the original. In his deposition he stated that many years ago before he attained the years of discretion, the original was burnt, as the zemindar's kutchery took fire. This is no admissible evidence which would prove the less or destruction of the original and therefore, in my judgment Exhibit 1 ought not to have been admitted in evidence. With regard to Ex. 2 the position is different. A case for secondary evidence has been made out and Ex. 2 which is a certified copy of the conveyance has been rightly admitted in evidence. The conveyance by which the Petitioner purchased the holding re-cites this conveyance. There is in it a recital that the jama is Rs. 39-0-19 g. There is, therefore, an admission by the predecessor-in-interest of the Petitioner, that in 1880 the jama was Rs. 39-0-19 g. Accordingly, the amount that is being realised now is an enhancement of 12 annas and about 9 pies, in excess of the rental mentioned in the year 1880. Mr. Sarkar says that there is a variation to the extent of annas 12 and odd. He says that although the enhancement is to the extent of annas 12 and odd, it cannot be considered to be a substantial one. The learned Munsif held that this variation rebuts the presumption which the tenant gets under sub-sec. 1 of sec. 50 of the Bengal Tenancy Act. The tenant is paying annas 12 and odd more and that there is no dispute that this sum is actually being realised. The vendor of the Petitioner and his predecessor had submitted to the enhanced payment by annas 12 and odd; there can be no doubt about that in this case. The question is this, whether this change in the rental rebuts the presumption under sec. 50 (2) of the Bengal Tenancy Act. 3. There has been some cases in this Court which say that in order that the presumption under sec. The question is this, whether this change in the rental rebuts the presumption under sec. 50 (2) of the Bengal Tenancy Act. 3. There has been some cases in this Court which say that in order that the presumption under sec. 50 (1) may be rebutted, there must not only be a real variation, that is to say, not only a mere variation on paper, but a substantial one. If the decisions had been all in one way, inspite of my own views, I would be bound to give effect to those decisions and make the Rule absolute. But the decisions are not uniform. In my judgment the correct principle has been laid down by Cuming and Mukerji JJ., in a Letters Patent Appeal in Dearish v. Dwijadas Chakrabarty 41 C.L.J. 103 (1926) where the decision of B. B. Ghose, J., was affirmed. Mr. Justice Mukerji delivered the judgment in the Letters Patent Appeal and laid down the principle in these terms:-- All that is necessary to find is whether there has been a change in the rent or the rate of rent. Of course the change must be a real one in the sense that it was intended to be a change but that does not mean that it must be a substantial amount........The relevant question is whether there has been really a change or variation and not whether the same was in respect of a substantial amount; and the amount of the variation is only one of the elements to be considered in determining the question. 4. With this principle I respectfully agree and for this reason. Landlords in this country in respect of agricultural lands have a common law right to enhance rent, and this right can only be taken away by express contract or by reason of a statutory provision. Sec. 50 of the Bengal Tenancy Act is a statutory provision and, in my judgment, in order that the tenant may resist the landlord's right to enhance rent, it is necessary for him to prove that he comes within the terms of the statute. Leaving aside small amounts, due to payment being made according to the present currency, in order that the tenant may get the benefit of sec. 50 he must prove that the rent has been paid at a uniform rate for more than 20 years. Leaving aside small amounts, due to payment being made according to the present currency, in order that the tenant may get the benefit of sec. 50 he must prove that the rent has been paid at a uniform rate for more than 20 years. If there is a variation even of a small amount, and if the excess amount had been actually realised and is being realised by the landlord, that fact will put an end to the presumption arising under sec. 50 (2). 5. In this view of the matter, I hold that the learned Munsif has correctly decided the question as to whether the holding is an ordinary occupancy holding or a holding at a fixed rent. That disposes of the main point urged by Mr. Sarkar. 6. There is another subsidiary point, namely that the learned Munsif was not justified in giving 50 per cent. of the landlord's fee as compensation to the Opposite Party. No doubt sec. 26.T permits a Court to grant compensation to the extent of the landlord's fee. The Court has the power, but what would be the amount in a special case must be considered by the Court. In the case before me I see no reason why the learned Munsif should have assessed the compensation at 50 per cent. for which he has given no reason. The position which has been taken by the purchaser is supported by some decisions of this Court. Having regard to the fact that there is a decision of the Division Bench which I have noticed, and which is also binding on me, I have taken the view which is against the contention of the purchaser. In these circumstances I think that the ends of justice would be met by granting the Opposite Party No. 1 only nominal compensation. 7. I accordingly maintain the decrees of the learned Munsif in respect of the sums of Rs. 114 and Rs. 79 respectively on account of the balance of the landlord's fee but modify the decrees with regard to compensation. The Plaintiff Opposite Party is awarded compensation of Rs. 2 in each of the cases. The Rule is discharged, subject to the above modification, but in view of the divergent judicial opinions in this Court, I make no order as to costs.