Mitter and Grant, JJ.
1. With reference to the first point it has been urged (a) that in 1851 the plaintiff's predecessor in title having obtained a decree for enhancement under Section 5, Regulation XLIV of 1793, by virtue of his auction purchase right, it would be contrary to the intention of the Legislatureis expressed in that Regulation, to allow the plaintiff to raise the rent, again ; (6) that under the provisions of Regulation VIII of 1793, it was intended that a zemindar should have the power of enhancing the rent of a dependant taluk where he establishes such right under Section 51 of the said Regulation, once for all, and that he has no right to enhance the rent second time ; (c) that supposing the contention (d) is untenable, a zemindar seeking to enhance the rent of a dependant taluk a second time, on the ground that he is entitled to enhance the rent by the speeial custom of the district, cannot succeed by proving the existence of such custom generally, but must establish that the custom upon which he relies enables him to enhance the rent a second time.
2. In support of (a), the case of Mohiny Mohun Roy v. Ichamoyee Dassea 4 C. 612 has been cited. Although this case supports the contention, still it does not help the appellant, because the plaintiff is seeking in this case to enhance the rent of the taluk, not by virtue of his right of an auction-purchaser, but by virtue of his ordinary right of a zemindar to enhance the rent of an under-tenure from time to time. In the case cited, the plaintiff's claim for enhancement under this ordinary right was disallowed, because the defendant established that her tenure was a mokurari istemrari one. In the present case the defendant has failed to prove this fact, and in the previous suit, which resulted in the decree of 1851, the contention that the taluk was mokurari istemrari was negatived. Although therefore the contention (a) is good, it has no effect upon this appeal.
3. In support of (b), the case of Doorga Soondree v. Chundernath Bhadooree S.D.A. (1852) 642 has been cited. There are some observations in this judgment which support the contention. The question for decision, however, was the true construction of a decree of 1806, by which the rent of the dependant taluk in question in that case had been previously enhanced. The lower Court held that the decree of 1806 fixed the rent in perpetuity. The Sudder Court in upholding that construction says:
The proprietor, from whom the plaintiff purchased, sued, in the case decided in 1806, to have the talukdari rent fixed, according to Clause 1, Section 51, Regulation VIII of 1793, at Rs. 4,581 per annum, and the rents for back years realized for him at that rate. The mention of the section in question carries with it the intention of permanency in regard to the jama then demanded ; for that section had application solely to persons of the class of ' dependant talukdars.' Now the principle of settlement with dependant talukdars prescribed by the law Section 48, Regulation VIII of 1793, was that the zemindars were to settle with them for the same period as the term of their own engagements with Government,' that is, in perpetuity, after the decennial settlement made with the zemindars had been extended to a permanent settlement. Different provisions are made in S.D.A. Section 48 to 51 for as regulating the rate of rent to be paid by dependant talukdars, but the rate, once adjusted upon those rules, was to be settled as the jama of the zemindari. It is only as to the 'remaining lands' of the zemindaris that is, all but the lands of dependant talukdars, that Section 52 of the Regulation goes on to say that the zemindars are entitled to lease them, 'under the prescribed restrictions, in whatever manner they may think proper.
4. With deference to the learned Judges who decided that case it seems to us that the words 'for the same period as the term of their own engagements with Government 'in the above extract have been erroneously held to mean 'in perpetuity.' The Regulation VIII of 1793 was a re-enactment with certain modifications of the Regulation which was passed on the 23rd November 1791 (see Preamble) embodying the principles on which a decennial settlement of revenue had been made in Bengal on the 18th September 1789. In 1791 this decennial settlement had not been made permanent. The 'period' mentioned in the above extract, i.e., in Section 48 of Regulation VIII of 1793, therefore means the period of the decennial settlement, i.e., ten years. That this is the right construction appears to be clear from the provisions of Section 2, Regulation XLIV of 1793, which was passed on the same date on which Regulation VIII of 1793 was passed. Section 2, Regulation XLIV of 1793, says: 'No zemindars, independent talukdars, or other actual proprietors of land, nor any person on their behalf, shall dispose of a dependant taluk to be held at the same or at any jama, or fix at any amount the jama of an existing dependant taluk for a term exceeding ten years, &c;, &c.;' It provides therefore that no proprietor shall fix at any amount the jama of an existing dependant taluk for a term exceeding ten years. This provision and the provision in Section 48 of Regulation VIII of 1793 would be contradictory to one another, if we construe the words 'for the same period' in the latter as meaning in perpetuity.
5. Even if the words 'the same period' in Section 48, Regulation VIII of 1793, mean 'in perpetuity,' it does not provide that the rent of the taluk is to be fixed in perpetuity. On the other hand, Section 48 itself and the three following sections contain provisions which show that there may be dependant taluks with variable rents.
6. We have not been referred to any provision in the Eegulations which either expressly or impliedly shows that the rent of a dependant taluk once enhanced cannot be enhanced again. On the other hand the provisions of Sections 48 to 51 indicate that the burden of proof being thrown upon the zemindar, the question of enhancibility of a dependant taluk would depend upon the terms of the contract under which it has been created. The right given to a zemindar to enhance the rent of a dependant taluk under Section 51, by the proof of the special custom of the district entitling him to do so is, in our opinion, also referable to the terms of the contract. Because whenever such custom is established, it would be presumed, unless the contrary appeared, that the parties contracted with reference to it, i.e., having regard to the custom the parties intended that enhancibility of the rent would be one of the incidents of the tenure. We are, there fore, unable to accept the contention (b) as valid.
7. The contention (c) is, in our opinion, equally untenable. If the enhancibility of the tenure be established by proof of the special custom of the district as one of the incidents of the tenure, it would be for the tenant to establish, on the other hand, that that incident is in any way qualified. We are, therefore, of opinion that the lower Courts are right in deciding that the defendant's tenure is liable to enhancement.
8. But the contention of the appellant regarding the assessment of the rent is in our opinion valid. The assessment should be fixed with reference to the rates of the villages comprised in the tenure i.e., it should be fixed upon the existing assets of the taluk. Ordinarily this is the principle upon which the new rent should be fixed. But there may be cases where the talukdar, by making improvident grants of leases at fixed rents, may have reduced the assets of the mehal so as to render the application of this principle unjust to the zemindar. But that case was not set up in the plaint here.
9. The District Judge also accepts this contention as good; but he thinks that the lower Court acted in accordance with it. In his opinion the lower Court referred to the evidence of the neighbouring rates in order to check the evidence regarding the rates paid by the ryots of the villages comprised in the tenure. But in this respect the District Judge has fallen into an error. The Court of first instance, as it appears from its judgment, fixed the rent with reference to the neighbouring rates only. It accepted the report of the Sub-Deputy Collector, and it has been shown to us that that report wholly proceeded upon the rents paid by the ryots in the neighbourhood outside the limits of the taluk.
10. We are, therefore, of opinion that the enhanced rent has been fixed on a wrong principle. It should be fixed upon the existing assets of the taluk, allowing to the talukdar the deduction that has been allowed by the lower Courts. We set aside the decree of the lower Courts only as regards the rent fixed by it, and remand the case to the Court of first instance to assess the rent again upon the existing assets of the taluk. We leave it to the discretion of that Court to decide whether it should allow the parties to adduce fresh evidence or not. Costs will abide the result.