Lawernce Jenkins, C.J.
1. This is a suit brought to recover rent and enhanced rent.
2. So far as the recovery of the original rent is concerned no question arises, but the claim to the enhanced rent is opposed.
3. The lower appellate Court has sanctioned an enhanced rent of Rs. 102 a year, but has arrived at that enhanced rent by methods which cannot be recognized in a suit of this class.
4. Where an Inamdar seeks to impose enhanced rent on a Mirasdar it lies upon him to prove that the enhanced rent is fair and equitable and such as according to the custom of the country is leviable on land of the description held by the Mirasdar and we must accordingly send back the case for the determination of the issue :-
5. Whether the rent demanded by the plaintiffs is fair and equitable and such as according to the custom of the country is leviable on miras land of the description held by the defendants 1
6. It must be noticed that it is only that which according to the custom of the country is leviable that can be properly imposed, so the Court must be satisfied on this point.
7. The return should be in three months.
8. As the proper issue was not raised by the lower Courts, further evidence may be adduced.
9. The finding on this issue was in the negative.
10. The case was again heard by Jenkins C.J. and Aston J. on the 26th January 1906, when their Lordships again sent down certain issues. The Judgment was as follows :-
The issue sent down was 'whether the rent demanded by the plaintiffs is fair and equitable and such as Recording to the custom of the country is leviable on miras lands of the description held by the defendants.
11. Both the learned Judges have found in the negative. At the same time they have expressed a view as to what should be the outside limit of rent that could be claimed. But it is not clear from the judgment of the lower appellate Court that sufficient importance was attributed to the fact that we are in this case concerned with miras lands which are exempt by reasn of their tenure from unfettered enhancement.
12. As the case therefore must go down, we think that it would be better to have a more complete investigation of the whole question.
13. Accordingly we frame the following issues:-
1. Was the In am grant of the soil or of the Royal share of Revenue?
2. Were the defendants, or any predecessors in title of theirs, in possession of the lands in suit at or before the date of the grant in Inam under which the plaintiffs claim ?
3. If so, were they in possession at that time as tenants of the person to whom the Inam grant was made and had they Mirasi rights?
4. Is it rent or assessment that is payable ?
5. Have the plaintiffs the right by virtue of usage or otherwise to enhance as against the defendants ?
6. If there is a right to enhance, then to what extent can the enhancement be made having regard (a) to the usage of the locality in respect of land of the same description and tenure and (b) to what is fair and equitable
14. These were the issues which were formulated in Rajya v. Balkrishna (1905) 7 Bom. L.R. 439.
15. The parties will be at liberty to adduce further evidence.
16. Findings to be returned in two months.
17. The finding on these issues were that the grant was of the soil. The second issue was found in the negative. No finding waa considered necessary on the third issue. What was payable was rent and the fifth issue was answered in the affirmative. The extent to which the plaintiff was found to have a right to enhance was Rs. 90.
18. The case came up for final disposal before Jenkins C.J. and Khareghat J. on the 5th January 1907, when their lordships varied the decree of the lower appellate Court by awarding to the plaintiff two years? rent at Rs. 51 a year and an enhanced rent of Rs. 90 for the third year.