Nasim Ali, J.
1. These two appeals arise out of two applications by the appellant landlord for settlement of fair and equitable rent of two occupancy holdings under Section 105, Ben. Ten. Act. The landlord claimed enhancement of rent on two grounds : (a) Increase in the price of the staple foodcrops under Section 30 (b), Ben. Ten. Act, and (b) increase in the area of the holding under Section 52, Ben. Ten. Act. The Settlement Officer allowed an increase on the first ground but dismissed the landlord's claim for enhancement under Section 52. The tenant accepted the increase under Section 30 (b). The landlord however appealed to the Special Judge for enhancement of rent under Section 52. The learned Special Judge dismissed the appeals. Two second appeals were taken by the landlord to this Court and my learned brother Biswas J. has affirmed the decision of the Special Judge. Hence these two appeals under Section 15 of the Letters Patent. The only question for determination in these two appeals therefore is whether the landlord is entitled to get any additional rent for increase in the area of the holdings under Section 52, Bengal Tenancy Act.
2. In order to determine this question, it is necessary to ascertain the area for which rent has been previously paid by the tenant. The incidents of these two holdings are governed by two kabuliats, Exs. 1 and 2. The terms of these two kabuliats so far as they are relevant for the purpose of the present appeals are identical on all material points. The relevant term of one of these kabuliats is as follows:
I hereby promise by executing a kabuliat for a period of one year from 1316 B. S. agreeing to pay Rs. 12-12 1/2 gds. as tent for 11 dones 8 kalis and 11 gds. described in the schedule below .... At the time of survey I will be present and will be bound by the settlement of rent and if at the time of the survey there is an excess, you will have right to make a separate settlement for the excess land.
3. The case of the tenant is that the area for which rent has been previously paid by him is the entire parcel of land included within the boundaries mentioned in the kabuliats irrespective of its actual area. The case of the landlord is that the area for which rent has been previously paid by the tenant is the assumed area mentioned in the kabuliats without any measurement. There is a stipulation in the kabuliats about settlement of additional rent for excess land as stated above. The learned Special Judge has observed that such stipulations are common and that they always refer to cases of positive and negative encroachment. Biswas J. was of opinion that the excess contemplated by the kabuliats was not an excess area within the original boundaries but a real increase of area by the addition of new land to the holdings. In other words, the learned Judge was of opinion that the stipulation about the payment of additional rent for additional area contemplated addition of new land to the original area of the holding by encroachment. The question therefore is what was the intention of the parties when the stipulation about the payment of additional rent was made. An examination of the boundaries of the several plots given in the kabuliat shows that at the time of the kabuliats there had been no khas land of the landlord on any of the sides of any of the plots demised by the kabuliats. The concurrent finding of fact of the Court below is that there had been no encroachment by the tenant. There cannot be any doubt therefore that while entering into stipulation about payment of additional rent for excess area, the parties were not thinking of any land outside the boundaries mentioned in the kabuliat. At the time of the execution of the kabuliats, rent was assessed on the areas mentioned in them with this reservation that if in future after measurement this assessed area was found to be wrong or in other words the actual areas were more than the areas assumed, the landlord would have the right to claim additional rent for this excess land. The rent mentioned in the kabuliats therefore was not intended to be a consolidated rent for the entire land within the original boundaries for all time to come. It was taken to be the rent of the holding till after fresh measurement the actual area was ascertained. The land-lord is therefore entitled to get additional rent for excess area, if there be any, within the original boundaries.
4. The next question is what is the extent of the excess land. The findings of the Courts below are neither clear nor specific on the point. There is also no finding as to what would be the rate or amount of fair and equitable rent for the excess land, if there be any. For the aforesaid reasons I allow these appeals. The judgment and decree of Biswas J. as well as of the Special Judge and also of the Settlement Officer so far as they relate to the landlord's claim for additional rent under Section 52, Ben. Ten. Act, are set aside. It is declared that the landlord is entitled, on the basis of the kabuliats in question to get additional rent for excess area, if there be any. The cases are sent back to the Assistant Settlement Officer. He is directed to determine the excess area and to settle additional rent on such excess area, if there be any, according to law. The appellant will get his costs in the Letters Patent Appeals only. The parties will bear their own costs in all the Courts below. Future costs will abide the result.
S.K. Ghose, J.
5. I agree. I may add that in my judgment the determining factor in such a case is the contract. Was the contract one for consolidated rent irrespective of area or was it for rent on the basis of the area? In the present case there is no doubt that the lands comprised within the boundaries as described in the kabuliats were let out. Biswas J. says that the statement of the area was an immaterial part of the description of the holding. That is where I differ from him with great respect. It is clear that although the lands comprised within the holding were let out, the rent was assessed on the basis of the area. This area was apparently mentioned by guess at the time. It is further stipulated in the kabuliats that if in future there be a measurement and it be found that the area is not what was stated in the kabuliat but something more, then the tenant would be liable to a fresh settlement. As my learned brother has pointed out, in the schedule in the kabuliats the boundaries of the land are given. It also appears that there was no khas land belonging to the landlord so that there was no room for encroachment. It is clear from the stipulations in the kabuliats that the intention was that the rent should be assessed on the basis of the area and that being so the tenant is clearly liable for any increase in the area whatever that may be.