1. In the suit out of which this appeal has arisen the plaintiffs who are the appellants in this Court sought to enhance the rent of some 17 tenants. These persons were holding separate lands separately under the landlords. They sought to enhance the rent first on the ground of rise in the price of the staple food-crops, and secondly, they asked for additional rent for additional area on the ground that the tenants were holding more lands than what had been settled with them. What practically, amounts to 17 suits have been tried together as a single suit. The inconvenience of this procedure is only too obvious and it is quite possible that the plaintiffs have suffer ad from having adopted this procedure. Be that as it may, the law allows this procedure to be adopted, and the plaintiffs having deliberately adopted, this procedure can hardly now complain.
2. The Assistant Settlement Officer dismissed the suit op both grounds. He would seem to hold that the jamas were mokarrari ones being held at a fixed rate of rent from the time of the permanent settlement and also that the landlordshad failed to prove that there had been any increase in the area. The landlords plaintiffs appealed to the District Judge With regard to what I may describe as 4 khatians, namely, Nos. 14, 18, 21 and 32 he decreed the appeal so far as it concerned the claim to enhancement of rent; on the ground of rise in the price of the staple food-crops. With regard to the claim for additional rent for additional area he dismissed the appeal as regards, these khatian numbers also. With regard to the other 13 khatians he dismissed the appeal.
3. The plaintiffs have appealed to this Court. They contend that as regards, khatians Nos. 16,24 and 19 it is quite, clear from the construction of the kabuliyats that these kabuliyats are : not confirmatory as held by the learned District Judge and they further argue with regard to all the khatians that the lower appellate Court was wrong in holding that the landlords having failed to prove the-original area on which the present rent was based had failed to prove that there, had been any increase in area. They would seem to contend that there were certain kabuliyats, and in these kabuliyats certain areas were stated and these kabuliyats formed the basis of the contract, that it must be taken that the area as given in these kabuliyats was the, amount of lands for which the defendants agreed to pay the rent mentioned in the kabuliyat and, therefore, it was sufficient for them to show that the present area, was much larger than the area given in these kabuliyats. The simple answer to this contention is this: the landlords in order to succeed in showing that there had been an increase in area were bound to prove what was the area of the tenancy at the time of its inception. This is the principle laid down in the case of Rajkumar Pratab Sahay v. Ram Lal Singh  5 C.L.J. 538. The kabuliyats in these cases do not really form the contract on which the tenancies are basel. They are really only confirmatory of the former contract and nothing more. It cannot, therefore, be said that the defendants having agreed in these kabuliyats to pay so much rent for a certain area stated in these kabuliyats it would be sufficient for the landlords to show that the present area varies from that area. As I have stated these kabuliyats being only confirmatory and not the original contract, it is necessary for the landlords to show as is laid down in the case of Bajkumar Pratab Sahay y. Ram Lal Singh (1907) 5 C.L.J. 538 what was the area at the inception of the tenancy, We are not prepared to interfere with the finding of the learned Judge on this point that the landlords having failed to prove what the original area was on which the present rent was based they were not entitled to additional rent for additional area.
4. The learned vakil for the appellants has then specifically argued with regard to khatians Nos. 16, 24 and 19, and he argues that on proper construction of the kabuliyat in khatian No. 16, there has been a change of rent. In this kabuliyat it is stated that the original rent was Rs. 29-4-0, and that the defendant now pays Rs. 29, four annas being kept in suspense or hajat. In other words the rent is nearly the same, namely, Rs. 29-4-0. Four annas out of this rent is kept in suspense and it is open to the landlord at any time to insist upon the payment of this four annas. In other words, the rent is Rs. 29-4-0. There is ffeally no change in the rate of rent in this khatian. This kabuliyat, therefore, does not prove that there his been any change in the rate of rent so far as khatian No. 16 is concerned.
5. With regard to khatian No. 24 the position would appear to be this: the landlords purchased it at a rent sale and after the sale he resettled the land with the same tenant. The learned vakil argues that in this case there has been a break in the continuity of the tenancy, that although the land was settled again with the same tenant he cannot be considered as successor-in-interest of himself. There has been a break because his present tenancy is a new tenancy although it has been settled with the same tenant at the same rate of rent. This contention, we think, is sound. It is quite clear that the landlords having purchased it at a rent sale were entitled to the khas possession of the tenancy of the former tenant. It was open to them to have settled it at any rate they chose. In our view this constitutes a new tenancy, and the presumption under Section 50, Ben. Ten. Act does not apply. As regards khatian No. 21 the appeal will be decreed, and the case will be remanded to the Court of first instance to determine how much, if any, increase the landlords are entitled to for the rise in the price of the staple food-crops.
6. With regard to khatian No. 19 the position would appear to be this. The original holder sold or transferred a half of his tenancy. The landlord recognized the transferee as his tenant. It seems to us that in this case a new tenancy was created and, therefore, presumption under Section 50, Ben. Ten. Act, does not apply and the landlords in this case are entitled to an increase on the ground of rise in the price of the staple food crops. Khatian No. 19, therefore, must be remanded to the Court of first instance to be determined how much, if any, increase of rent the landlords are entitled to for rise in the price of the staple-food crops, The appeal with regard to khatians Nos. 19 and 24 is decreed and the costs will abide the result. Hearing-fee one gold mohur.
7. The appeal with regard to the other khatian numbers will stand dismissed with co3ts. Heiring-fee three gold mohurs.
8. Appeal No. 642 of 1926 is not pressed and is dismissed with costs. Hearing-fee one gold mohur.
9. I agree with the conclusion arrived at by my learned brother and the orders he has passed.