Mohamad Akram, J.
1. These two appeals by the plaintiff landlord arise out of the two of the suits for recovery of arrears of rent. There were three suits instituted, viz., Suits Nos. 1687, 1688 and 1689 of the year 1938, but the appeals before us relate only to two of them, viz., Suits Nos. 1687 and 1689 in which rent was claimed for the years 1341 to 1344 B. Section at Rs. 16 and Rs. 15 per year respectively on the allegation that the tenants had been paying at that rate since 1314 B.S.; there was also an alternative claim for additional rent for additional area under Section 52, Ben. Ten. Act. The I plea in defence by the tenants who were different in the different suits was that the claim put forward by the landlord was illegal, the enhancement being in contravention of the provision of Section 29, Ben. Ten. Act, and that the jama in each of the two suits was a consolidated jama of Rs. 10-4-0 per year. Both the Courts below dismissed the claim for additional rent under Section 52, Ben./ Ten. Act. The plaintiff thereupon preferred the present appeals.
2. It is conceded before me by the learned advocate for the appellant that the decision as regards the objection taken under Section 29 is correct and cannot now be questioned but it is contended that the view taken by the lower appellate Court in respect of the claim under Section 52, Ben. Ten. Act, is erroneous, namely, the view that as the tenancies 'were composed of some definite plots and an undivided share in another plot (No. 117).' Section 52 was not applicable as held in : AIR1930Cal595 Benode v. Ganga and that consequently the appellant was not entitled to additional rent upon the basis of his alternative claim. It appears, however, that the decision in the above mentioned case was given with regard to a suit of 1926 when the definition of a holding in Section 3, Clause (9), Ben. Ten. Act, was as follows: ' 'Holding' means a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy' but since 1926 this definition has twice been amended in 1928 and in 1938. After the amendment of 1938 it runs as follows:
Section 3, Clause (5) : 'Holding' means a parcel or parcels of land or an undivided 'share thereof, held by a raiyat or an under-raiyat and forming the subject of a separate tenancy; whether the raiyat or under-raiyat has held the land before or after the commencement of the Bengal Tenancy (Amendment) Act, 1928.
The portion underlined (italicised here) came to be the definition upon the amendment Of 1928.
3. In the above circumstances the decision in : AIR1930Cal595 Benode v. Ganga cannot, in my opinion, be, applicable to the present case which was in-stituted in April 1938; the contention put forward by the learned advocate for the appellant that the plaintiff is entitled to a consideration of his claim for additional rent under Section 52, Ben. Ten. Act, therefore, appears to me to be correct. I would accordingly set aside the judgment of the lower appellate Court to the extent that it holds that Section 52, Ben. Ten. Act, is inapplicable to the present ease and the portion of the decrees based thereon and remit the cases to the Court of appeal below for determining the question of the additional rent claimed by the appellant on the basis of excess area, upon the evidence which is already on the record. While dealing with this matter the Court below will have regard to the principles indicated in : AIR1924Cal374 , Manindra Chandra Nandi v. Kaulat Shaik. The appeals succeed to the extent specified above - costs will abide the result.