Chandrasekhara Aiyar, J.
1. In the suits for rent brought under Section 77 of the Madras Estates Land Act, the landlord claimed rent also for excess areas said to be in the holdings of the tenants. The excess area was ascertained, it is said, at a survey under the Surveys and Boundaries Act, to which the tenants were not parties. Both the lower Courts have decreed the suits even as regards rent for the excess areas, holding that the cases fell under Clause (3) of Section 42 of the Madras Estates Land Act. The learned District Judge has proceeded upon the footing that the rent was fixed with reference to the area in the old pattas and that a glance at them would show that the rent varied in exact proportion to the extent. Exs. D-4, D-4 (e), D-4 (b) and D-5 are the old pattas. They do not bear out this statement of the learned District Judge; there is nothing in them to show that the rents were fixed with reference to the area, or that the rents were varied in exact propotion to the extent. No data are available from which we could say that the rate of rent was such and such per cawnie of wet or dry land and that the rent given in the pattas for the area specified against the field number was arrived at on this basis. Moreover, for lands of the same description as regards crop and taram, the rents given vary, irrespective of the extent and are not proportionate.
2. I respectfully agree with the view taken by Biswas, J., in Nanda Kishore v. Khetabuddin Ahmad : AIR1937Cal632 . A mere statement of the area as well as the rent in the patta does not discharge the burden on the landlord; he must go further and show that the area was the basis for the fixation of the rent specified. If the rent mentioned was a consolidated rent for the field in question, assumed to be roughly of a parti-cular area, then the remedy of the landlord, if the area found in the tenant's possession is in excess of what is stated in the patta, is to apply under Section 42 to the Collector.
3. Whether any implied agreement to be spelt out of the entries found in the old pattas can be relied on by the landlord to take the case out of the ambit of Section 42, is itself open to doubt. Clause (3) refers to an agreement in writing, under which the rent is fixed in proportion to the area, or where the rent is fixed on the basis of an assumed area and the agreement provides for the alteration of the rent when the actual area is found to vary from the assumed area. This indicates, to my mind, that the agreement must be an express one. There is no such agreement in the present case.
4. The suits filed by the landlord for the excess rent in each case must therefore stand dismissed with proportionate costs in the trial Court. This, however, does not mean that the landlord is not entitled to take appropriate steps under Section 42, Clauses (1) and (2) for obtaining relief at the hands of the Collector.
5. The landlord will pay the costs of the tenants in the District Court and here. Half the Advocate's fee will be allowed in each second appeal. Leave refused.