1. The two suits which have given rise to the present appeals were for enhancement of rent, in respect of two tenures trader Section 7, Ben. Ten. Act. The defence in the case was that the tenures were mukarrari and therefore not liable to enhancement of rent. Both the Courts below found against the defendants on this point and they held that the tenures were not mukarrari but were liable to enhancement of rent. The Court of first instance allowed enhancement to the 'plaintiff's and in determining the assets of the defendants calculated the value of the paddy at the rate of Rs. 9 per shola. Against this decision there were appeals preferred by the defendants and the lower appellate Court remanded the cases to the Court of first instance giving some directions in its judgment as to the way in which the assessment of the rent in kind should be made. Against this decision the plaintiffs have come up to this Court in second appeal.
2. A preliminary objection was raised before us that as the order of the lower appellate Court was an order of remand and as the order of remand could not be an order under Order 41. Rule 23, Civil P.C., no appeal lay in the case. This preliminary objection does not appear to me to have any substance in it. The order whereby the lower appellate Court sent the case back to the Court of first instance was really a 'decree' because it was not an order of pure remand but contained a determination of the principle on which the assessment was to be made. Coming now to the merits of the appeals I am inclined to think that the lower appellate Court was not justified in directing an assessment to be made in accordance with the provisions as they are to be found in Section 40, Ben. Ten. Act. Section 40 of the Act relates to the case of an occupancy raiyat and has no applicability to the case of a tenure-holder. The decree of the lower appellate Court cannot therefore be allowed to stand.
3. Now the question is whether the decree of the Court of first instance can be maintained. The trial Judge, as would appear from his judgment, took into his consideration the circumstances under which the lands were first let out and if he fixed a fair and equitable rent on the basis of the rate of Rs. 9 per shola of paddy, he did it on the ground that the defendants themselves had been claiming the price of paddy rent from their own tenants at that rate for the year 1922 to 1925, which was a period shortly before the date of institution of the present suit. The trial Judge in fixing a fair and equitable rent also gave effect to the provisions of Sub-section (3), Section 7, Ben. Ten. Act. Having regard therefore to the fact that the decree of the Court of first instance is based on the provisions of Section 7 and that the trial Judge in determining the fair and equitable rent took into his consideration the circumstances under which the tenures had been created, I am of opinion that it cannot be successfully assailed. I would therefore allow the appeals, set aside the decrees of the lower appellate Court and restore those of the Court of first instance with costs both in this Court and in the Court below.
4. I agree.