B.K. Mukherjea, J.
1. This is an appeal on behalf of the defendant and arises out of a suit commenced by the plaintiffs for recovery of arrears of rent due in respect of a certain holding at the rate of Rs. 70-1-9 a year. The defence is that the rent due in respect of the holding was Rs. 54-6.6 a year and the excess of Rs. 15 odd that is claimed by the landlords is in contravention of Section 29, Ben. Ten. Act and is hence not recoverable. The plaintiff's attempted to get round this bar by saying that after the publication of C. S. records which recorded the rent at Rs. 54-6-6 a year, they were about to commence proceedings for increase of rent under Section 105, Ben. Ten. Act and thereupon the tenant agreed to an increment of Rs. 7-14-9 for additional area and also to an enhancement of Rs. 7-12-6 on account of rise in the price of staple food-crops making an aggregate of Rs. 70-1-9 and this is the rent which the defendant had been paying for a considerable period of time exceeding ten years.
2. The trial Judge held that there was an excess in the area by about l 1/2 pakhis but he held at the same time that the landlords enhanced the rate rather unsystematically and the Court would not have allowed enhancement of rent but for the fact that the enhanced rent had been admittedly paid for a period of three years immediately preceding the period for which rent was claimed. In this view of the case, the Munsif decreed the plaintiffs' suit and allowed rent at the rate claimed by the plaintiffs. I may point out here that the Munsif was really labouring under a misapprehension of law, for, the proviso (1) to Section 29, Ben. Ten. Act only dispenses with the necessity of a contract being in writing and registered but does not affect Clauses (b) and (c) of the section.
3. There was an appeal taken to the lower appellate Court by the defendant against this decision, and the lower appellate Court dismissed the appeal and affirmed the judgment of the trial Court. The lower Appellate Court was of opinion that the plaintiffs had failed to prove that there was a real increase in the area for which rent was being paid, by proper and adequate evidence, but as there was a contract to pay enhanced rent and realisation at that rate for a considerable number of years, there was no reason why 'the contract followed by realisation for long time' should not be given effect to. It is against this decision that the present second appeal has been preferred.
4. It appears to me that the lower Appellate Court has not approached the case from the proper stand point and its decision is vitiated by misdirection on a point of law. It is true that Section 29 of the Act has no application where there are excess lands which are added to the original holding and a consolidated rent is assessed upon the whole, but it is incumbent upon the Court to find in all oases that this addition of excess lands is not resorted to as a mere device to get round the provisions of Section 29, and that the lands which are said to have been added were real and not a fictitious addition. In this case, as I have already pointed out, the lower Appellate Court distinctly came to the conclusion that the plaintiffs had not succeeded in proving that there was a real increase in the area, but according to the learned Subordinate Judge [this deficiency in the evidence was made up by proof of the so-called contract and realisation of rent for a long time. In my opinion the view taken by the lower Appellate Court is not correct. The facts that the tenant agreed to pay enhanced rent beyond the limits prescribed by Section 29, and actually paid rent at that enhanced rate for a considerable period of time are by themselves not sufficient to take the case out of the section. If the original rent is known and the excess that is claimed is prima facie in excess of that which is allowed by Section 29, the initial burden to justify the increase must always be upon the landlord. The landlord can discharge the burden either by showing that in fact there has been an increase for which additional rent was assessed and it would also be open to him to rely upon any admission made by the tenant-defendant admitting the existence of additional lands, in which case the burden will be upon the tenant to explain away the admission or to prove by positive evidence that, as a matter of fact, there was no increase. The lower Appellate Court has not certainly looked at the question from this stand-point. It no where finds that there was an admission made by the defendant himself wherein he admitted that in fact there was an increase in the area. The learned Subordinate Judge no doubt refers to Ex. I, upon which not much stress was laid by the trial Judge, but he has not considered properly as to whether the defendant was a party to the same and if so, whether in fact he admitted that additional rents were increased for additional area which in reality existed. If there was no such admission contained in Ex. I, I fail to see how the subsequent Dakhilas upon which some reliance has been placed could be said to have corroborated the original statement which is supposed to be made in Ex. I. In one passage in the judgment the learned Subordinate Judge says that the counter-foils, Ex. I and Ex. I-f, show that the increment was demanded and agreed to owing to increase in area according to Cadastral Survey, but even then he has not found that there was really any increase according to Cadastral Survey.
5. Dr. Sen Gupta who appears for the respondents has argued before me that there is a considerable body of evidence which has been adduced on behalf of the plaintiffs which would go to show that there was really an increase in the area, and the area recorded in the Cadastral Survey records would, according to the evidence adduced by the plaintiffs as to the standard of measurement, conclusively establish the fact, The lower Appellate Court, as I have pointed out, has not recorded any finding on that point, and I think that in the interest of justice the case should be sent back to the lower Appellate Court in order that there may be a re-hearing of the appeal.
6. The lower Appellate Court will first consider and decide as to whether the plaintiffs have been able to show that there was any increase in the area which would justify the enhancement of rent which was admittedly beyond two annas in the rupee. The plaintiff can show that by independent evidence, or he can rely upon any admission made by the defendant, in which case, as I have already stated, the burden will be shifted on the defendant's side to show that the admission was wrong and as a matter of fact there was no increase. Keeping this principle in mind, the lower Appellate Court will dispose of the appeal according to its findings on the evidence and according to law. The lower Appellate Court will be at liberty to take additional evidence if it considers necessary.
7. The result is that the judgment and decree of the lower Appellate Court are set aside and the case is sent back to that court for re-hearing in the light of the observations made above. There will be no order for costs in this appeal. Further costs will abide the result.