Henry Richards, C.J. and Tudball, J.
1. The history of this unfortunate case is told in the Judgment of the lower appellate court. The litigation, which was really of a very simple nature, commenced in the year 1906. After various vicissitudes it came before Mr. Holme, District Judge of Allahabad. He decided in his Judgment all the questions between the parties, and all that can be taken exception to is the last line of his decree, dated the 30th of March, 1912. The proceedings originally were brought under Section 95 of the Tenancy Act, which provides that at any time during the continuance of a tenancy either the land-holder or the tenant may sue for a declaration as to any of the matters therein set forth, class (d) 'the rent payable in respect of the holding and whether payable in cash or kind.'
2. The learned District Judge was unable to say what the rent payable in respect of certain lands was, because no rent had ever, in fact, been fixed either by agreement of the parties or by the court. It seems to us quite clear that it was never intended that the court in proceedings under Section 95 was to fix the amount of rent. Under Section 95 it. was intended that the court should ascertain what in fact was the rent payable, that is to say, if there was a dispute between the land-holder and the tenant as to what the amount was, it would be the duty of the court to say which side was right, but it was not intended that the court should receive evidence and consider circumstances where no rent had ever been agreed upon or fixed by the parties. It is quite clear from the Judgment of the learned District Judge that he never intended to make a declaration that no rent was ever to be payable for the land. It is quite clear that rent must be paid after it has been fixed either by agreement between the parties or through the court. We are quite sure that if an application had been made to the learned District Judge, he would have made his decree quite clear on this point. In order to avoid any future confusion, we direct that the decree of the court below shall be modified so as to read as a declaration that no rent had theretofore been paid or fixed in respect of the said lands in lieu of the words 'that no rent is payable in respect of the said lands.'
3. As in our opinion the amendment could have been obtained without an appeal, we direct that each party do pay their own costs in this appeal.
4. We modify the decree of the court below as indicated above.