Lawrence H. Jenkins, C.J.
1. This is a suit brought for enhancement of rent under Section 30 of the Bengal Tenancy Act. It was dismissed by the Munsif, and that decree of dismissal was confirmed by the lower Appellate Court. On appeal to this Court Mr. Justice Caspersz expressed his agreement with the lower Appellate Court. It is from this judgment of Mr. Justice Caspersz that the present appeal is preferred under Section 15 of the Letters Patent.
2. The grounds on which the plaintiffs based their claim for enhancement were, first, that the rate of rent paid by the defendants was below the prevailing rate paid by occupancy raiyats for land of a similar description and with similar advantages in the same village or in neighbouring villages, and that there was no sufficient reason for their holding at so low a rate; and, secondly, that there has been a rise in the average local prices of staple food-crops during the currency of the existing rent. Both these grounds, in the opinion of the lower courts, the plaintiffs failed to establish. I will deal with the second ground first, and will consider whether the Courts have committed an error in the finding that the plaintiffs had not made good their claim to enhancement on the ground of a rise in the average local prices of the staple food-crops. The solution of this question is to be found in Section 39 of the Bengal Tenancy Act. By Section 32 of the Act, it is provided that, 'when an enhancement is claimed on the ground of a rise in prices, the Court shall compare the average prices during the decennial period immediately preceding the institution of the suit with the average prices during such other decennial period as it may appear equitable and practicable to take for comparison.' Section 39, Clause (1) provides that 'the Collector of every district shall prepare monthly, or at shorter intervals, periodical lists of the market prices of staple food-crops grown in such local areas as the Local Government may from time to time direct, and shall submit them to the Board of Revenue for approval or revision.' By Clause 4, it is enacted that 'the price list shall, when approved or revised by the Board of Revenue, be published in the official Gazette.' By Clause (6) it is provided that 'in any proceedings under the Chapter for an enhancement of rent on the ground of a rise in prices, the Court shall refer to the list published under this section, and shall presume that the prices shown in the lists prepared for any year subsequent to the passing of this Act are correct, and may presume that the prices shown in the lists prepared for any year prior to the passing of this Act are correct, unless and until it is proved that they are incorrect.'
3. Now, it is not suggested that the Munsif or the lower Appellate Court referred to these lists, nor is it disputed that such lists do exist, and therefore it follows that in this suit, which is a proceeding under Chapter V, the lower Courts failed to make that reference which was imposed upon them by the terms of the law. Therefore, there has been an error of law which entitles the plaintiffs to come here and ask that it should be corrected.
4. Next, I shall deal with the point that the Courts have erred in so far as they have failed to give effect to the appellants' contention that the rate of rent paid by the defendants is below the prevailing rate paid by occupancy raiyats for land of a similar description and with similar advantages in the same village or in neighbouring villages. It appeared to the Munsif that the prevailing rate of rent could not be satisfactorily ascertained without a local enquiry, and so the Court directed a local enquiry to be held under Chapter XXV of the old Code of Civil Procedure as allowed by Section 31, Clause (b) of the Bengal Tenancy Act. It seems that three separate enquiries were held, and still the Munsif was not satisfied with the report that he got. Apparently, however, he did not think it necessary or proper to direct a further inquiry. As we have determined that the appellants are entitled to succeed on the ground of an error in relation to their objection that their contention as to a rise in prices has not had effect given to it, I think it is legitimate, in the circumstances, for us to interfere in this part of the case too, and to point out the error into which the lower courts have fallen. I am not going to enter into the question as to whether the Munsif has correctly read the last report which was made to him. I will assume, for the sake of argument, that he has correctly read it. But on this assumption he should have passed a further order indicating clearly to the revenue officer what precisely it was that he desired to be formulated in the report. The revenue officer can hardly be expected to know the requirements of the civil Courts in this respect, and it is right and proper that the civil Court, in directing a local investigation, should indicate to the officer holding the investigation what it is that the Court precisely requires, and I think it will be the duty of the Court to pass such an order now, in case the lower Court is satisfied that the present report is not sufficient for its purpose. It is said that the present report does not furnish materials on which there can be an enhancement of rent by reference to the prevailing rate in the village, and it is said that no report could be furnished which could give those materials, because the rate of rent in the village is one to which it would not be proper to refer for the purpose of enhancement, inasmuch as it is a rate of rent fixed in contravention of the provisions of the Bengal Tenancy Act. Whether that is so or not is a question of fact on which we cannot, in second appeal, pronounce any opinion. But assuming that it is so, then it would be the duty of the Court to direct a local investigation as contemplated, with reference to the neighbouring villages in regard to which no such objection prevails. So it comes to this: if the Court is satisfied that all the rent in the village should be excluded from consideration, because it is fixed in a mode which contravenes the provisions of Section 29 of the Bengal Tenancy Act, then an enquiry should be directed which will bring to light the prevailing rate of rent paid by occupancy raiyats for land of a similar description and with similar advantages in neighbouring villages.
5. The result then is that disagreeing, as I do, with the judgment of Mr. Justice Caspersz, I hold that the decree of the lower Appellate Court was erroneous, and should be set aside, and the case should be sent back to the Munsif for rehearing in the light of these remarks.
6. The appellants will get their costs in the High Court, that is to say, the costs connected with the hearing before Mr. Justice Caspersz and before this Bench. The costs in the lower Courts will abide the result.
7. This judgment will govern the other two appeals.
8. I agree.