1. The two main contentions of the appellants in these appeals being, first that the remand is bad, and second that Section 158, Bengal Tenancy Act, has been misappreciated by the Court, below, it is necessary to examine the precise character of the suits which have given rise to the appeals and the nature of the reliefs asked for therein.
2. These six appeals arise out of as rainy suits for recovery of arrears of rent. The plaintiffs alleged that the defendants paid rent at a certain rate for the holdings, and that in the record of rights no rent was entered, but it was only stated the holdings were liable to assessment of rent. The plaintiffs prayed; (1) for rent at the said rates, and (2) that if the defendants denied those rates and the plaintiffs failed to prove them, they might be given decrees for fair and equitably rents, and they said that the rents they claimed represented such fair and equitable, rents for the holding and that those rents should accordingly be settled as such. The defence, which is material at this stage, was that the rents of the holdings were really much less and were what were stated on their behalf.
3. There was a further prayer by the plaintiffs for enhancement under Section 30, Clause (b), Bengal Tenancy Act, but this prayer was eventually withdrawn. There was a defence on the ground of remission on account of 'haja' but it was left open with the consent of both the parties as it was not pressed so far as these suits were concerned. During the pendency of the suits on the 4th July 1925, the plaintiff filed a petition for a local enquiry under Section 158, Bengal Tenancy Act. The Munsif rejected the petition holding that there was an existing rate of rent, which was the rate alleged on behalf of the defendants and when the existing rate could be determined an enquiry under that section for the determination of fair and equitable rent was not permissible. Being of that opinion he decreed the suit for the rents admitted by the defendants.
4. The Subordinate Judge on appeal by the plaintiffs has passed a judgment the terms of which are somewhat difficult of comprehension, and there has accordingly been a good deal of controversy at the Bar as to what he has exactly found. He has in the result, set aside the decrees of the trial Court and remanded the suits to that Court with directions to grant the plaintiffs' petition under Section 158, Bengal Tenancy Act. The defendants are the appellants to this Court from this order. In our opinion, the two findings which the Subordinate Judge has recorded and which cannot be now challenged are : first
that the plaintiffs could not prove a fixed jama as there was no such fixed jama,
that the defendants could not prove fixed jamas as there were none.
5. These two findings have been repeated in another part of the judgment in these words:
Regard being had to the evidence discussed above as adduced by the plaintiffs and the defendants, I find no hesitation to say that there were no fixed jamas in existence.
6. Then he proceeded to observe thus:
It must be held that there was no subsisting contract and there must be an enquiry for ascertainment of fair and equitable rent
7. In that view the learned Judge remanded the suits as indicated above.
8. The appellants' first ground, in our opinion, ought to succeed. There is no, point in sending the cases down to the trial Court if the only object of adopting that course is to have an enquiry under Section 158, Bengal Tenancy Act, by a revenue officer. The result of such enquiry may be taken into consideration by the appellate Court itself and then the appeal may be finally disposed of. The last-mentioned course will have, if nothing else, this advantage that it will do away with the necessity of at least one appeal.
9. The next contention of the appellant is that Section 158 has no application as 'the rent payable' within the meaning of Clause (d) of the section is only the existing rent and not the fair and equitable rent. In support of this view reliance is placed upon the marginal note to the section which speaks of 'application to determine incidents of tenancy' and certain decisions of this Court to which we shall presently refer. It is also contended that the plaintiff', having failed to prove the rate an which he claimed, is not entitled to decrees for fair and equitable rents even if they may be determined under Section 158.
10. In one of the earliest decisions of this Court, Nityanund Ghose v. Kishen Kishore  W.R. 1864 Act, X. Ruling 82, which was a suit instituted under Section 5, Act 10 of 1859 for the purpose of settling what the defendant's rents should be at the purgonnah rate and to obtain from him a kabuliyat at those rates, this Court pointed out that where A avowedly holds and cultivates B's land, he is by the universal custom of this country B's tenant (even without express permission to cultivate on B's part, or express condition to pay rent on A's part and while so holding and cultivating, is bound to pay B a fair rent and to give him a kabuliyat. The learned judges pointed out the 'distinction between the English law and the law of this country in this respect. Suits for pottahs and kabuliyats under the provisions of Act 10 of 1859 were somewhat rare and Section 158 was introduced to provide for a means of obtaining an authoritative statement of the essential incidents of a tenancy. Where there is an arrangement as to the rent that arrangement is the incident as to rental as contemplated by Clause (d) of the section. Where there is the relationship of landlord and. tenant without an arrangement as to the payment of rent properly so called the law recognizes an implied promise on the part of the tenant to pay a rent that is fair and equitable and that fair and. equitable rent is the rent that is payable within the meaning of that clause. This is the view that was taken of the clause-in the case of Barhamdut Misser v. Krishna Sahay  18 C.W.N. 466 where it was said that the relationship of landlord and tenant under the Bengal Tenancy Act may be governed not only by contract but also by status and that Clause (d), Section 158, admits of the determination of fair and equitable rent when the fair and equitable rent is the rent that is payable by the tenant at the time of the application. This also is the view of the Patna High Court as expressed in the case of Ramgobind Singh v. Shashi Sekhar Prasad Singh A.I.R. 1925 Patna 517. In some of the reported cases it has been said somewhat loosely, as I presume to think though with the utmost respect for the learned Judges who decideded them, that 'the rent payable' within the meaning of the clause is the 'existing rent' in the sense of the rent that was being, paid or had previously been paid, but when the decisions of these oases are examined in the light of the facts of the cases themselves it is doubtful whether any such proposition was ever meant to be laid down. Of these cases the more worthy of notice are, the cases of Purna Rai v. Bunshidhur Singh  3 C.W.N. 15, Sri Narain Thakur v. Luchmeshivar Singh  6 C.W.N. 592 and Debendro Kumar Bundopadhya V. Bhupendro Narain Dutt  19 Cal. 182 (F.B.). In the first of these cases there are some observations which support the appellants' contention but the show facts that the revenue officer there was given certain direction which went beyond what the revenue officer his to do under the section and also that the enquiry that was held by him was outside the range of the enquiry that was necessary for assessing fair and equitable rent for the tenants holding. In the second case in a proceeding under Section 158 the Court proceeded to assess additional rent for excess lands found to be in the occupation of a tenant and it was held that it had no jurisdiction to do as its function was limited to record the existingretit payable at the time of the application and did not extend to assess additional rent for excess area. The last case mentioned above is more important as being a Full Bench decision of the Court. In that case it was observed that
the object of this section is to enable the Court to ascertain what are the incidents of the existing arrangements between a landlord and the tenant, and not to enable the Court in effect to make a new contract for parties between whom no contract was in existence at any time before the date of the application.
11. The facts of that case in connexion with which these observations were made1 were that under colour of an application under Section 158 asking for the determination of the incidents of a tenancy a lease was sought to be set aside under which the tenant came into possession. In our opinion the appellant contention is not well founded. The revenue officer will, on the local enquiry he will hold, be competent to ascertain the contract rate or rate of rent; if he finds that there is none such, he will be equally competent to determine a fair and equitable rent for each of the holdings. In the latter case-the fair and equitable rent is the rent payable in respect of the holding on the basis of the implied promise which the-status will give rise to.
12. Here a further question arises, as it seems to be the view of the learned Subordinate Judge that if the revenue officer finds fair and equitable rents the plaintiff will be entitled to decrees on the basis thereof. This follows from his-omission to give any further directions on the point and is likely to mislead any Court that may have occasion to deal with the suits hereafter. The question, therefore requires consideration.
13. As has been pointed out by Richardson, J., in his well-considered judgment in the case of Dhananjoy Manjhi v. Upendranath Deb  22 C.W.N. 685 a suit to asses rent is consistent with and arises out of the general law and the land revenue system of the country, and is irrespective of anything in the Bengal Tenancy Act. The learned Judge in that judgment referred to certain cases in which a claim for assessment of rent and for recovery of such rent for a certain period has been either expressly held as maintainable or has passed unquestioned. On the other hand in Partab Mohton v. Wazir-un-Nisa A.I.R. 1925 Pat. 559, the learned Judges of the Patna High Court, following an earlier decision of the same Court laid down that in a suit for assessment of a fair and equitable rent it is understood that rent had not been settled or paid hitherto and the Court is asked to determine the rent to be paid in future and, therefore, the plaintiff is not entitled to claim rent in arrears at the rate to be assessed as fair and equitable in the suit. The two views are not necessarily conflicting. The determination of the rent payable under Clause (d), Section 158, when it is the fair and equitable rent for the holding must be such as is payable at the time of the application and on its basis only rent for future years may be realized and not for the year in arrears in the suit; while there is nothing to prevent the landlord from asking for a decree for the back rents at such rate as the Court may find to be fair and equitable for the years in suit. If the revenue officer is able to determine the contract rents the plaintiff will undoubtedly be entitled to decrees on the footing thereof. If he finds only fair and equitable rents those can only be such rents as are payable at the time of the application. In the latter case the plaintiffs having failed to prove the contract rents as alleged by them, and there being nothing to show what the fair and equitable rents for the period in suit was the plaintiffs' claim will be allowed only to the extent it is admitted by the defendants, and they will be entitled to a declaration as to the fair and equitable rents that are found for the holdings.
14. With these directions we allow the appeal and set aside the order of the learned Subordinate Judge and send the cases back to his Court so that the Court may now direct an enquiry under Clause 2 of Section 158, Bengal Tenancy Act, and on receipt of the report of the revenue officer as regards the result of that enquiry proceed to dispose of the appeals in the manner indicated above.
15. The appeals Succeed to the extent above mentioned, but in view of the nature of the success there will be no order for costs.
16. I agree.