1. It is impossible, in our opinion, to construe the contract so as to throw on either party the burden of paying the enhanced assessment. There is no indication in the contract that the possibility of an enhancement of the revenue was in the contemplation of the parties at its date.
2. Nor is it possible to lay down as a general rule that the landlord is in all cases prima facie bound to pay the enhanced assessment. The theory of enhancement being that the Government takes a share of the increased value of the produce due to increase in prices, it would follow that prima facie the tenant should pay the enhanced assessment if he pays a fixed money rent to the landlord or again if the enhancement is traceable to improvements effected by a tenant who pays a fixed money rent, then, as he reaps the benefit of the improvements he ought prima facie to pay the excess that is imposed as a consequence of their existence.
3. But where, as here, the rent is paid in kind or partly in kind, so that both the landlord and the tenant lose a proportion of the increased value of the produce, it seems equitable that the enhanced payment should be shared between them, the landlord paying that proportion of the increase which is equal to the proportion which he receives of the produce, in other words, each party should pay in this as in other cases in proportion to the benefit he derives from his interest in the land. For instance, if the net produce raised is equally divided between the landlord and the tenant each ought to pay half the increased assessment. We are, therefore, unable to uphold the decision of the District Judge, and we must ask him to decide the case again with reference to the foregoing remarks.
4. The issue for determination will be, what proportion of the assessment is payable by either party with reference to the benefits which they respectively derive from the land, and upon the determination of this issue will depend the amount, if any, which the mulgeni tenant having paid the whole assessment is entitled to deduct from the rent.
5. Accordingly, we reverse the decree of the District Judge and remand the appeal suit for re-disposal. It may be necessary to receive fresh evidence to decide this question. Costs will abide the event.