Norman Macleod, Kt., C.J.
1. The plaintiffs sued to recover possession of the plaint lands and to recover costs and rents for three years before suit 1917-18 to 1919-20. They claimed that the defendants were annual tenants, the tenancy being duly terminated on March 31, 1920, by a notice sent on December 24, 1919. The rent claimed amounted to half the profits for rice lands, for grass lands, and for fruit bearing trees, and one-third profits for work is lands, this being alleged to be the practice for Dharekari villages like the plaint one. The case comes from Ratnagiri, but plaintiff is not a Khot but an ordinary landlord.
2. The trial Court held that the defendants were perpetual tenants, and that plaintiffs were entitled to enhance to a reasonable extent, and that reasonable enhancement was four times the assessment for two years in suit, and for the others in which there was famine, only twice the assessment was decreed.
3. But in addition to the decree for enhancement at four times the assessment, the Judge also decreed to the plaintiffs rent for fruit trees which were grown by the tenants on the land, and with regard to one jack-tree in thikan Gayal, he held that the defendants were only annual tenants.
4. The defendants appealed. The only variation in the decree which the appellate Judge made was in the order of costs. The trial Judge had directed the defendants to pay plaintiffs' costs, and to the extent of half the costs of pleader's fee and plaint Court fee, whereas the appellate Judge directed that parties should bear their own coats in the suit and in the appeal.
5. It would appear from the evidence that in this village there has been a constant conflict between the plaintiffs and their tenants. The plaintiffs have not admitted that the tenants had any right to any fixity of tenure. In Some cases suits were filed, and the rights of the parties were declared, and the rate of enhancement fixed by the Court or by compromise. It is difficult to gather from the judgment of the appellate Judge what in these particular cases he considered would be a reasonable enhancement It is quite true that that judgment only related to the suit years, thus leaving it open to the plaintiffs, at the end of the period, to again claim enhanced rent at any number of times the assessment which they might be pleased to fix themselves Bat the appellate Judge thought 31/3- times the assessment, which was the average for three suit years, as fixed by the trial Judge would be a fair rate for enhancement, As a matter of fact the trial Judge thought four times was afair rate It was only because the crops were poor in 1918-19, that a lower rate was fixed for that year. It is not a fact then that the Judge in the trial Court considered that 3-1/3 times the assessment was a fair rate for enhancement. And it would appear from the words in the judgment of the lower appellate Court 'After all the margin between 1/3 and 3 times the assessment is very narrow' that he did not desire to interfere with the judgment of the trial Court because the difference was so small, only one-third of the assessment. As 1 pointed out in the argument one thing in perfectly certain that if this judgment stands, the plaintiffs will certainly contend that it was decided by the Courts that four times the assessment was a reasonable rate for enhancement.
6. It has been urged before us that what is a reasonable rate is question of fact. But even if one looks at the question from that point of view, I am by no means clear that the District Judge did not think that throe times the assessment was a reasonable rate, Considering that error, as I have just pointed out, in the reasoning of the judgment of the lower appellate Court, I do not think that plaintiffs should recover from the tenants for the suit years, or in any one year, more than three times the assessment. It must be remembered that these defendants and other tenants have been in occupation, according to the evidence, of their lands for so long that the origin of their tenure cannot be ascertained, For that reason they have been allowed fixity of tenure, and for that reason also, I am of opinion they are not to be considered as tenants to be rack-rented. But in addition to the rent of the land, the Judge had allowed rent for fruit trees. He admits that these trees have in most cases been planted within thirty years last, and no usage with regard . to charging rent for them has grown up, there being disputes practically since they began to bear fruit. Now, if a tenant improves his land by growing fruit trees, the assessment will be increased, and consequently the landlord's rent will be increased. But the landlord cannot also get rent based on the assessment and in addition rent for the fruit trees. For that there can be no possible warrant. Then as regards the jack-tree, we cannot agree with the decision of the Court below. The appellate Judge says: 'It is different however with regard to the jack-tree Exhibit 8 in appeal No. 156 of 1921 deposes 'I had taken on rent one jack-tree in thikan Gayal, cannot say from whom,' It is clear that if he had taken it from a permanent tenant he would have said so,' There is no reason why any exception should be made with regard to the one particular jack-tree, which will come within our decision that the tenants are not liable to pay additional rent for the fruit trees.
7. The result will be that the plaintiffs are given a decree for rent at twice the assessment for 1918-19 and three times the assessment for the other years, and as plaintiffs have claimed that defendants were annual tenants, and sought to recover possession, and on that question have lost, they will have to pay the costs of the suit throughout. The same decision will govern the other companion appeals, except S A. No. 226 in which the decree of the lower Court is confirmed with regard to plot B and the land called 'Dehan Mala' held to belong to the plaintiffs.
8. The cross-objections are dismissed with costs.