Macpherson and Stevens, JJ.
1. Pergunnah Pakheria Jainsahi originally formed an entire estate, but has now by partition become four estates, one of which represents a 10 annas share and the others each a 2 annas share of the original estate. Subordinate to the original estate there was an ancient tenure called Madarjani, the rent of which was allotted proportionately to each of the four estates, the land remaining undivided. This has now become two tenures, one representing a 13 annas 15 gundas share and the other a 2 annas 5 gundas share of the original tenure. The plaintiff as proprietor of estates Nos. 4806 and 5513, each of which represents a two annas share of the Pergunnah, brought suits No. 29 of 1890 and No. 7 of 1891 to enhance the rent payable to him for his four annas share, and these suits, which were tried together and disposed of in one judgment, have given rise to four appeals, of which Nos. 391 and 392 of 1896 relate to suit No. 27, and Nos. 45 and 46 of 1897 to suit No. 7.
2. Enhancement is claimed under Section 7 of the Bengal Tenancy Act, and the plaintiff's case substantially is that he is entitled to receive as a fair rent a greater share of the tenure-holder's profits. It is not now disputed that the rent of the tenure is enhanceable, and indeed it was held to be so by this Court in its judgment of the 30th November 1888 in suits between the parties now before us. That judgment gives also an account of the almost continuous litigation which has been going on between the proprietors of the estate and the tenure-holders on the question of enhancement. The Subordinate Judge has decreed enhancement in both suits solely on the strength of certain road cess returns put in by the plaintiff, for he has rejected as unreliable the whole of the oral evidence bearing on the rent by the raiyats.
3. Appeal No. 391 is preferred by the plaintiff and appeal No. 392 by the first three defendants and defendant No. 14 in suit No. 27 for the enhancement of the rent of the 13 annas 15 gundas tenure, and we shall deal first with those appeals. The rent has been enhanced to Rs. 2,386-11-0 after allowing 5 per cent, as collection charges and 20 per cent, as the tenure-holder's profit, and half of that amount has been made payable to the plaintiff as proprietor of one estate and half as proprietor of the other; the enhancement has been graduated so as to take full effect at the end of the year 1301, and the rent has been made payable in four quarterly instalments. The main contentions of the defendants, appellants, are that Section 188 of the Bengal Tenancy Act precludes the plaintiff as one of several joint landlords from maintaining a suit to enhance his share of the rent; that the road cess returns relied on are not evidence against them, and that no ground for enhancement has been established.
4. We see no force in the first contention. The original arrangement by which there was one tenancy under one holding of landlords came to an end when the parent estate was partitioned, and the effect of the partitions was to create separate and distinct tenancies under the proprietors of each of the estates. It cannot be said that the proprietors of the several estates were joint landlords of the tenure, for the estates were separate and the share of the rent allotted to each formed a portion of the assets of that estate alone. This was the view taken in Sarat Soondary Dabea v. Anund Mohun Surma Ghuttack (1879) I.L.R., 5 Cal., 273, and Sarat Soonduree Debiav. Sutneeroodeen Talookdar (1874) 22 W.R., 530. In the cases cited for the appellants there had been no division of the tenancy consequent on the partition of the parent estate. We further think that the effect of this Court's decree of the 30th November 1888 is that the rent of the four annas share of the tenure can be enhanced, but whether the declaration in that decree was intended to relate to the whole tenure or the four annas share of it, we must hold that the suit is maintainable.
5. The road cess returns are Exhibits 1 to 4 and 6 and 7. None of these were submitted by the appellants, and Exhibits 3, 4, 6 and 7 relate, not to the tenancy under either of the plaintiff's estates, but to the tenancy under estate No. 122, which represent the ten annas share of the pergunnah, and are, we consider on that ground, inadmissible. We cannot hold that there is a separate and distinct tenancy under the plaintiff as proprietor of one estate so as to admit of his enhancing the rent payable to him, and at the same time hold that there is one and the same tenancy under him and the proprietors of estate No. 122 so as to make a statement relating to the tenancy under the latter estate admissible. If the tenancies are distinct, the statement to be admissible must, we think, relate to the tenancy which is in question. In this view all but Exhibits 1 and 2 must be excluded, but it is upon those and exhibit No. 3 that the Subordinate Judge has acted.
6. Exhibits 1 and 2 are returns relating to the plaintiff's estates Nos. 5513 and 4806, respectively. They were signed and submitted by Hari Narain Ghose as am-mukhtear of Raja Jotindra Narain Roy, whose interest has now devolved on his widow Rani Hemanta Kumari, the 23rd defendant in the suit, but not a contesting defendant. They show that in 1884 Jotindra Narain's 11 gundas 2 karas share of the tenure was let out in ijara for terms of three or four years to certain persons at an aggregate rent of Rs. 54-2-4 as regards each of these estates. Exhibit 3 is a return, which as already stated relates to estate No. 122. It was signed and submitted by Harendra Kumar Bose as am-mukhtear of Maharani Sarat Sundari Debia, who was the mother of Jotindra Narain, and whose share has also now devolved on Hemanta Kumari, and it shows that her 1 anna 14 gundas 2 karas share of the tenure appertaining to estate No. 122 was let out to the ijaradars mentioned in Exhibits 1 and 2 at an annual rent of Rs. 813-13-0. Those returns have been made evidence against the appellant under Clause 3, Section 32 of the Evidence Act, as containing statements made by a deceased person against his pecuniary interests, and it is on them alone that the assets of the four annas share of the tenure appertaining to the plaintiff's estates have been determined and the rent enhanced. The statements Made in the returns were no doubt authorised by the Rani and Raja, respectively, and under the provisions of the Road Cess Act were binding on them, but looking at the language and scope of Section 32, we doubt whether they can be regarded as statements made by those persons within the meaning of the section so as to be admissible against others. It is not, we think, necessary to determine this question in the present case, because, assuming that the statements' are evidence against the appellants they do not in our opinion furnish any reliable data for ascertaining the assets of the tenure, and have been given a value far beyond what they deserve.
7. The statements do not purport to give the rent realized in respect of the whole tenure, or to deal with more than the small shares owned by the Raja and Rani. It was, therefore, necessary to resort to a mathematical calculation, which must have assumed two things: first that the ijaras were not of a speculative character, and that the ijaradars realized from the raiyats at least the amount of the rent which they paid to the superior landlord; and secondly that the other tenure-holders, including the appellants, realized proportionately to their shares the same amount of rent, either from the same or other ijaradars or from the raiyats direct. We see no ground for either assumption. The returns stand by themselves, and beyond some general evidence that the raiyats paid all the tenure-holders at the same rates whatever those rates were, there is no evidence in support of them. Then the Rani and the Raja occupied the double position of tenure-holder and proprietor, for they were proprietors of estate No. 122. The Subordinate Judge says that the history of the previous litigation shows a determined effort on the part of the proprietors to enhance the rent of the tenure, but that there was admittedly some decision which protected the share of the tenure subordinate to estate No. 122 from enhancement, so that the Rani and the Raja would derive no advantage as proprietors by overstating the amount of the rent received by them as tenure-holders. We do not know what that decision is, but the fact that they occupied the double position remains, and certainly detracts from the value of the statements as affecting other sharers of the tenure. The argument that the statements carry some weight from the position of the persons making them, might be of some force, if it was shown that they had personal knowledge of them. This is not shown; all that appears is that the mukhtear received the returns from the amla and signed and put them in, and it is not likely that either the Rani or the Raja would have been able to say anything about the correctness of them. The returns are certainly prima facie against pecuniary interest, but the pecuniary interest affected is so small that they have little value on that ground. On the other hand, notwithstanding the provisions of Sections 21 and 32 of the Evidence Act, they could not under Section 95 of the Road Cess Act be used as evidence in favour of the person submitting them.
8. As the case stands on the judgment of the Subordinate Judge, it is in the same position as if the plaintiff had put in and proved these returns, and no other evidence of any kind had been given. In our opinion this is not sufficient, and no decree for enhanced rent could be made on the strength of them. It is argued that it was, in the power of the appellants to prove the amount of rent realized in respect of the tenure, but conceding that, it was for the plaintiff to start his case by proving under Section 7 of the Tenancy Act that the existing rent was below the customary rate payable by persons holding similar tenures in the vicinity, or that it was not a fair and equitable rent, and statements of other persons, such as those relied on, are not sufficient to throw on the appellants the burden of proving that the existing rent is fair and equitable.
9. It follows, therefore, that the suit must fail, unless the plaintiff succeeds in his appeal, and shows that the evidence as to rates should be accepted so as to entitle him to the enhanced rent decreed, if not the greater enhancement claimed.
10. The Subordinate Judge disbelieved the evidence of the plaintiff's witnesses, because they were under the plaintiff's influence, and were not residents or raiyats of the villages concerning which they spoke, and because also he did not believe that they ever held land in those villages, or were in a position to speak as to the rates of rent prevailing there. The evidence has been read to us, and we need only say that we think the Subordinate Judge's view is correct, and that we are not prepared to take a different view. It is not necessary under the circumstances to examine the evidence of the defendants' witnesses which has also been rejected as false.
11. The defendants also contended in their appeal that the enhanced rent could only be decreed prospectively from the date of the decree, and that the rent should have been made payable at the end of the year and not quarterly. In the view which we have taken it is not necessary to deal with these points. If it had been necessary we should not have been disposed to interfere with the decision of the Subordinate Judge upon them.
12. The result is, that the defendants' appeal No. 392 succeeds, and that the plaintiff's suit is dismissed with costs in both Courts, and that the plaintiff's appeal No. 391 is dismissed.