1. The plaintiffs are the lessees of the Shivagunga Zemindari and they are the appellants before us. They are the landlords under the Estates Land Act. In 1899 a registered rent deed was executed by the defendants in favour of the plaintiffs. The terms of that agreement were that the defendants should pay assessment on the area of a certain holding at the rate of Rs. 11 per sei in respect of Ayan lands in 3 villages leased to the defendant. The term of the lease has not yet expired. Under that same registered deed, the defendants agreed to pay assessment at Rs. 8 per sei on the Ayan lands in a fourth village also leased under the same deed. The area of the leased lands in the three former villages was given in the deed as 19-3-5 seis. The area of the land in the fourth village was given as 2-11-4 seis. In paragraphs of the said lease deed, however a provision was inserted viz., that in case the areas of the lands should on measurement, be found to be more than the areas mentioned above, the defendants should be liable to pay teerwa at the rate of Rs. 27-8-0 per sei on the excess so found from 3 years prior to the date on which such excess area was discovered. The plaintiffs allegations are that the plaintiff's Inspector discovered an excess of 2-3-5 seis in one of the first three villages and 0-0-4 sei in the fourth village in June 1909 and on this total area of 2-4-3 the defendants are liable to pay excess amount at Rs. 27-8-0 per sei/ from fusli 1315 including the current fusli of the plaint, namely fusli 1319. The suit was brought in the 27th May 1910.
2. Several defences were raised by the defendants. It is necessary however for the purposes of this second appeal to notice only one of them, viz., that contained in paragraph 4 of the written statement. The contention in that paragraph is that according to Clause 2 of Section 42 of the Estates Land Act the plaintiffs are not entitled to file a suit in respect of arrears for the excess measurement until the Collector had decided on application by the plaintiffs what such excess area was. The lower Courts accepted this contention and dismissed the suit without going into the other issues raised by the pleadings. We think that the decisions of the lower Courts cannot be upheld. Section 42 of the Estates Land Act corresponds to Section 52 of the Bengal Tenancy Act. Though Section 52 of the Bengal Tenancy Act does not contain the provisions contained in the proviso to Clause 2 of Section 42 of the Madras Estates Land Act, Section 188 of the Bengal Tenancy Act imposes another condition before a claim by a landlord under that act for an enhancement of rent can be recognised i.e. that in the case of joint landlords all must act together. In Dintarini Dasi v. L.P. D. Broughton (1896) 3 C.W.N. 225 the learned judges had to deal with a case similar to the present. The term of the lease there was that 'landlords were at liberty to measure the lands of tenants and, if the area of the lands be found greater in quantity than 150 bighas, its then estimated area, the tenant would pay rent at the rate of annas 10 per biga on the area found. The question was whether a suit brought by the landlord for the enhancement on this contract was a suit brought in respect of a right granted or declared by the Act in the landlord's favour and it was decided in the negative. The same question has been similarly decided in Ramchunder Chuckerbut y v. Girdhur Dutt.I.L.R.(1891) C.755 It was only where the landlord wants to enhance the rent, basing his claim on the right granted and declared by Section 42 Clauses 1(a) and (b) that he should obtain under Clause 2 the order of the collecter for such alteration of rent before he could claim the altered rent. As observed in the 3 Calcutta Weekly Notes case, 'The plaintiff does not seek in this suit under the provision of Section 52 of the Bengal Tenancy Act) ' (Section 42 of the Madras Estates Land Act) to alter the rent of the defendant. He says the rent has automatically been altered by the provisions of the defendants' lease on the land being measured and found to exceed 150 bighas in area ' Applying this principle it seems to us the proviso found in Clause 2 of Section 42 which requires the order of a Collector before enhancement of rent can be allowed does not apply to the claim of the plaintiff in this case. On similar grounds the learned Judges in the Calcutta case hold that the condition in Section 188 of the Bengal Tenancy Act that all landlords should act together did not apply to a suit brought for enhancement based on contract and not on Section 52.
3. The decrees of the lower Courts will therefore be reversed and the suit remanded for decision on the other issues raised in the case. Costs will be costs in the cause.