B.K. Mukherjea, J.
1. This is an appeal on behalf of the defendant and arises out of a suit commenced by the plaintiff for recovery of arrears of rent due in respect of two jotes which were recorded in khewats Nos. 15 and 16 under the taluki right of the plaintiff and his cosharers at a rental of Rs. 6 and Rs. 14 odd respectively. Rents were claimed for the year 1341 B. S. and the plaintiff also claimed enhancement of rant from the year 1342 B. S. under the provisions of Section 7, Ben. Ten. Act. So far as the arrears of rent are concerned, there is no dispute between the parties and the whole controversy centres round the point as to whether the plaintiff could claim enhancement of rent under Section 7, Ben. Ten. Act. The trial Court dismissed this part of the plaintiff's case being of opinion that the two jotes really constituted two raiyati holdings and not tenures, which could attract the operation of Section 7, Ben. Ten. Act. The Munsif however for the purpose of obviating the necessity of a remand did enter into the question as to the limits of enhancement, assuming that the lands did really constitute tenures and not holdings, and the opinion expressed by him was, that with regard to the jote recorded in Khewat No. 15 an annual rental of Rs. 15 would toe fair and equitable, and with regard to the lands recorded in khewat No. 16 a fair and equitable rent would be Rs. 30 a year. The lower Appellate Court on appeal by the plaintiff reversed the decision of the trial Court. The lower Appellate Court held inter alia that the lands were really tenures and not holdings and the rents in respect of them were enhanced to Rs. 25 and Rs. 35 a year respectively under the provisions of Section 7 of the Act. It is against this decision that the present second appeal has been preferred.
2. Mr. Guha, who appears for the appellant, has argued before me in the first place that the lower Appellate Court erred in law in holding that the lands recorded were tenures and not holdings as held by the learned Munsif. Even assuming that the lands are tenures' and not; holdings, Mr, Guha argues, that the plaintiff is not entitled to get any enhancement of rent under Section 7 of the Act; firstly because he has failed to prove a customary rent and hence cannot invoke the provision of Sub-section (2) of Section 7, Ben. Ten. Act. In the second place it is said that there is an entry in the Record of Rights to the effect that the rent is enhancible up to the limit of enhancement allowed in cases of agricultural holdings and that might be construed to be a contract between the parties within the meaning of Section 7, Ben. Ten. Act subject to which alone the rent could be legally enhanced. In the third place, it is argued that the lower Appellate Court has come to an arbitrary finding as regards the amount of enhancement and did not discuss the materials upon which the trial Court based its decision. Now, so far. as the first branch of Mr. Guha's argument is concerned, I am of opinion that the lower Appellate Court's finding is correct and must stand. The lands in suit are described in khewats and not in khatians and the tenants under the defendants are themselves recorded as raiyata from whom karsa rents are realised by landlords. It is true that the areas of the lands fall much short of 100 bighas but there is a statement made in the case return of the defendants, which can be construed as an admission on their part that in fact they were tenures and not holdings. I am therefore not prepared to accept this branch of Mr. Guha's argument as correct. Taking it however that the lands really constitute tenures within the meaning of Section 7, I do not think that it can be seriously argued that Sub-section (2) of Section 7 has no application to the facts of the present case. The plaintiff in his plaint expressly stated that there was no customary rent in the locality and he adduced evidence for the purpose of showing the absence of any customary rate. The defendant in his written statement did not challenge this position nor was any evidence adduced on his behalf to rebut the evidence adduced on behalf of the plaintiff. Under the circumstances it can be taken to be established that there was no customary rate of rent in the locality and as such the Court was at liberty to enhance the rental up to such limit as it thought fair and equitable. Mr. Guha has referred in this connexion to two decisions of this Court, viz. Midnapore Zemindary Co. Ltd. v. Sridhar Mahata (1922) 9 AIR Cal 152 and Jogesh Chandra Roy v. Izzat Ali : AIR1925Cal454 . In the first case it is laid down, and in my opinion quite correctly, that the first question for investigation, when a landlord seeks to enhance rent under Section 7, is, as to whether there is a customary rate payable by persons holding similar lands in the vicinity. It is only when this question has been answered in the negative that the rent can be enhanced by the Court under the provision of Sub-section (2). In the second case the plaintiff did allege a customary rate of rent and adduced evidence in support thereof but failed to establish it and under these circumstances it was held that when the plaintiff fails to prove a customary rate of rent as set out by him, the Court is not entitled to allow enhancement of rent under the provision of Sub-section (2). As I have said already, whatever evidence is there in this case it is entirely one sided and the plaintiff himself started his case by saying that there is no customary rate of rent in the vicinity. This contention therefore in my opinion cannot be accepted.
3. The other two points raised by Mr. Guha relate to the question as to the extent to which enhancement can be allowed by the Court assuming that the lands did really constitute tenures and not holdings. The Munsif came to a distinct finding that as there was an entry in the Record of Rights that the rent could be enhanced, even if they were tenures only to the extent that is allowed in the case of karsa holdings, the plaintiff was not entitled to get enhancement in the manner contemplated by Section 7. The learned lower Appellate Court has not touched or adverted to this point, nor, on the other hand, has it considered the entry in the Record of Rights which makes this remark as an incident of this particular tenancy. Once it is found that the lands do constitute tenures, Section 7 must necessarily be attracted if the rent is proved to be enhancible but that must always be subject to a contract between the parties. Whether or not this remark in the Record of Rights does constitute a piece of evidence from which a contract to the contrary, such as is contemplated by Section 7, Ben. Ten. Act, can be inferred is a matter which requires investigation and as the question was considered by the trial Judge but was altogether unnoticed by the lower Appellate Court, I think that in the interest of justice this question should be properly decided. I am also of opinion that the lower Appellate Court's finding as regards the amount of enhanced rent to which the plaintiff is entitled is not based on a proper consideration of the materials available. The trial Court did consider the matter from the point of view of the assets that are available in respect of both these tenancies and he allowed, it seems, about 40 per cent. of the total assets as rent to the landlord. The lower Appellate Court without assigning any reason whatsoever and without considering these materials on record have enhanced the rent to Rs. 25 and Rs. 35 respectively.
4. Under these circumstances I think it is proper that this case should go back to the lower Appellate Court for a proper consideration of the last two points which I have indicated above. The tenancies must be deemed to be tenures within the meaning of Section 7 and it must be held also that there is no customary rate of rent of similar lands in the vicinity as laid down by Sub-section (2) of Section 7. The lower Appellate Court therefore will proceed to determine the amount of enhancement to which the plaintiff is entitled and in that connexion will consider the two points mentioned above. He will consider first of all as to whether the entry in the Record of Rights does indicate any contract to the contrary within the meaning of Section 7, Ben. Ten. Act, and if so to what extent does it legally impose a limit upon the enhancibility of rent under Section 7. If he finds that it does establish a contract between the parties the enhancement will be allowed in accordance with the contract and nothing else If, on the other hand, he finds that it does not establish any contract of the kind that I have mentioned above or such contract was not legal he will allow enhancement of rent on a proper consideration of the materials as laid down in Section 7, Ben. Ten; Act. I make no order as to costs in this appeal. Final costs will abide the result.