1. In the suit out of which this appeal has arisen the plaintiffs sued to recover arrears of rent of certain jama, at a rental of Rs. 9-8-0 for the years 1324 to 1327 with damages. They also prayed for enhancement of rent on the grounds that there was an increase in area of the lands, that the existing rate of rent was below the prevailing rate and that there was a rise in the average local prices of staple food-crops. At the trial the plaintiffs only asked for enhancement on the ground of rise in the average local prices of staple food crops. The defence was that originally there were two jamas of Rs. 3-8-0 and Rs. 6 which were consolidated into one jama of Rs. 9-8-0, and these two jamas, out of which one jama was made had been in existence since before the time of the Permanent Settlement and, therefore, the rent was not liable to enhancement.
2. The first Court held that the plaintiffs were entitled to rent for the period in suit at the rate of Rs. 9-8-0 with damages at 25 per cent, and he rejected the claim for enhancement of rent. He held that the defendants were entitled to the presumption which arose under Section 50 of the Bengal Tenancy Act and this presumption had not been rebutted. In appeal the learned Subordinate Judge held that so far as regards one portion of the jama namely, the jama for Rs. 3-8-0 which comprised some two bighas and 5 cottahs of land the defendants had. proved payment of unaltered rent for more than 20 years. Hence the presumption under Section 50 arose and this presumption had not been rebutted by the plaintiffs. With regard to the other jama, namely, the jama of Rs. 6 which comprised some 3 bighaa and 10 cottahs of land he held that it was for the defendants to prove payment of fixed and unaltered rent for 20 years before the suit. The defendants had failed to prove that they had paid rent at the same rate for 20 years and, therefore, they were not entitled to the presumption under Section 50 of the Bengal Tenancy Act.
3. The learned vakil who has appeared for the defendants-appellants contends that the learned Judge in the Court below has approached the case from an entirely wrong point of view. It was not necessary to avail themselves of the presumption under Section 50 of the Bengal Tenancy Act to prove that they had paid rent at the same rate for 20 years. It was sufficient for the purpose of availing themselves of the presumption to prove that the rate of rent had remained unaltered for 20 years before the date of the suit. The learned vakil contends, and I think quite rightly, that the learned Subordinate Judge made an error of law in asking the defendants to prove that they had paid rent at the same rate for 20 years before the suit. It is quite clear that the learned Judge has approached the case from an entirely wrong point of view. It is not necessary to prove payment of rent at the same rate for 20 years. It is sufficient if the defendants could show that the rent or rate of rent remained unchanged for 20 years previous to the date of the suit. It is quite possible that they might not have paid a single year's rent.
4. The decree of the learned Subordinate Judge must, therefore, be set aside and the case remanded to him to consider the case so far as regards the jama of Rs. 6 from this point of view. If he does find that the defendants have proved that the rent or rate of rent remained unchanged for 20 years he will then have to consider whether the plaintiffs have or have not succeeded in rebutting the presumption which Would then arise. After he has determined this point he will then be in a position to determine whether the case is or is not to be remanded for a further finding to the trial Court as to whether there has or has not been a rise in the average local prices of the staple food crops and whether the rent is liable to enhancement on account of the rise in the average local prices. Costs will abide the final result.
5. I agree.