R.P. Mookerjee, J.
1. The pltf. applt. brought three suits for assessment of fair & equitable rent in respect of certain lands which had been recorded during the last Cadastral Survey as being liable to assessment. Arrears of rent with cesses & damages have also been claimed for the anterior period 1345-48 B. S. The suits were filed in the beginning of Baisakh 1349. The defts. raised various defences but the only one in issue in these appeals is whether in any suit for assessment of rent the pltfs. are entitled to obtain a decree for arrears calculated on the basis of the rates fixed in these proceedings. Both the Cts. refused to allow the claim for arrears & fixed the rent which would take effect from 1349 B. S. Hence these second appeals on behalf of the pltf.
2. It is contended on behalf of the applt. that these are suits for assessment of rent under the general law.
3. It is now undisputed that the right to have the rent assessed even in respect of agricultural lands is not limited to proceedings to be instituted under the Bengal Tenancy Act. This is a view consistent with & arises out of the general law & the land revenue system of the country : Dhananjoy v. Upendra Nath, 22 C. W. N. 685 : (A. I. R. (6) 1919 Cal. 989). Even before the Bengal Tenancy Act suits of this kind were known as suits for Kabuliats Ram Nidhee v. Parbutty, 5 Cal. 823 : (6 C. L. R. 362).
4. The prayer for assessment of rent in the present case may be treated as one under the general law.
5. In support of the proposition that in a suit for assessment of rent claim may be preferred in the same suit for the recovery of arrears of rent at a rate to be assessed in these proceedings, reliance is placed by the applt. on Gour Sundar v. Krishna Kamini : AIR1932Cal41 a decision by Guha J. sitting singly. The same view has recently been accepted by Sharpe J. in Anil Kumar v. Promatha Nath, 52 C. W. N. 316.
6. On behalf of the deft. resp., however, it is contended that Jugal Charan v. Debendra Nath, : AIR1940Cal572 a Bench decision, is an authority for the contrary proposition, & the pltf. has no right to claim rent until & unless it is actually ascertained & settled. This view has been accepted by the Cts. below, & the pltfs claim for arrears prior to the institution of the suit has been dismissed.
7. In course of the settlement proceedings in this part of the district, the record of rights was finally published about 1930, & against the holdings in question, it was noted that they were fit for assessment of rent. The defts. or their predecessor-in-interest had been in possession of the lands in suit for the period for which arrears are claimed.
8. The principal argument advanced on behalf of the deft. is that although during the period arrears are claimed there was a relationship of landlord & tenant, no rent can be claimed by the landlord as the tenant also did not even know what the rent was until & unless the fair & equitable rent is actually assessed. The landlord is not entitled to claim the amount to be settled in these proceedings as being payable as rent from before the date of the filing of the suit.
9. If the fair & equitable rent is to be assessed on the basis of specific terms in a written contract, the question whether arrears can be claimed in the suit for assessment & at the rate to be settled then & for a period before such rent is actually assessed, must depend on the special terms of such contract. In Akbar v. Ramesh Chandra, 38 C. L. J. 207 : (A. I. R. (10) 1923 Cal. 392) no rent was payable under the written contract during the first ten years of the settlement & it was stipulated that thereafter such rent was payable as might be fixed upon measurement dependent upon the nature & actual area in occupation. Although the first ten years expired in April, 1855, no attempt was made until 1917 by the landlord for having the rent assessed. The test applied was whether the liability to pay rent accrued under the contract, before or after the assessment. It was held that on an interpretation of the terms that the liability to pay the rent accrued only after the assessment, the pltf. was accordingly found to be entitled to rent from the date of the judgment of the trial Ct. & not for any period anterior thereto.
10. Another line of cases is where additional rent is claimed for additional area held by the tenant in excess of the original holding. In such suits, if brought under Section 52, Bengal Tenancy Act, for alteration of rent on alteration of area, arrears were claimed & allowed, such arrears being calculated on the additional rent assessed for additional land found in the possession of the tenant.
11. Of the relevant reported decisions of this type the earliest one is Jagannath v. Juman, 29 Cal. 247. The contention of the tenant in that case was that until a determination was made in course of that suit as to the quantity of excess lands in their occupation no back rent could he claimed Ghose & Brett JJ., held at p. 251
'no doubt Section 52, Bengal Tenancy Act, merely lays down the liability to pay additional rent for excess lands proved to be in occupation of the ryot, but there is nothing in the Act itself to debar the landlord from claiming back rent for any additional area if such an additional area is in the use & occupation of the ryot provided, of course, the period as made is within the statutory period as prescribed by the Limitation Act.'
Emphasis was specially laid on the difference in the provisions contained in Sections 52 & 154 of that Act. The latter section prescribed the time from which a decree for enhancement of rent is to operate & it is not competent for She Ct. to allow arrears where rent is determined under Section 154 of the Act. In Section 52, on the other hand, there is no specific provision prescribing the point of time from when the rent assessed is to take effect. The significance of this decision is also to be appreciated with reference to the fact that the additional rent which is assessed under Section 52, Bengal Tenancy Act, is not in respect of a separate tenancy consisting of that additional area only. The increment must be regarded as part of the parent holding treating it as part & parcel of the said parent holding. (Ashanullah v. Mohini Mohan, 26 Cal. 739.) The fact that in Ashanulla's case, (26. Cal. 739) arrears as claimed were disallowed, will have to be considered later on. It may be noticed, however, that Jagannath's case, 29 Cal. 247, proceeds not upon any specific statutory provisions as 'contained in Section 52, Bengal. Tenancy Act, but upon general principles. It. was held that if the statute gives no specific direction or fixes a date from which rent, to be assessed takes effect, such rent is taken to be payable even during an anterior period provided the tenant was in possession during such period. If the suit is one for enhancement of rent under any of the provisions contained in the Bengal Tenancy Act, Section 154 of that Act specifically provides that the enhanced rate will 'take effect on the commencement of the agricultural year next following.'
12. In support of the decision in Jagannath's case, 29 Cal. 247, reference was made to. an unreported decision of Gooroodas Banerjee & Brett JJ. In Tajainal Ali Chowdhury v. Kali Kishan Tagore (Appeal from Original Decree No. 339 of 1898 decided on 14-12-1900. This appeal arose out of a suit for recovery of arrears of rent after assessment of additional rent on land in the possession of the defts. in excess of that for which rent had been hitherto paid. The last point urged was whether arrears of rent or interest in respect of the excess land could be claimed until rent was assessed on those lands. Although Ghose & Brett JJ., based their decision on the unreported judgment referred to above the latter was never published. I would, therefore, quote the relevant passage from the unreported judgment :
'In support of this contention it was urged that until the additional rent was fixed, no arrears of such rent could be claimed nor any interest on such arrears, & the case of Ashanullah v. Mohini Mohan, '26 Cal. 739, was relied upon. But there is no provision in the law restricting the landlord's right to claim arrears of additional rent to the period subsequent to the date of its determination. Section 52, Bengal Tenancy Act, declares the tenant to be liable to pay additional rent, for any land found in his possession in excess of what he was paying rent for. And there is no reason why the tenant who has had possession of the land from before, should not have to pay rent for it for the period of his occupation antecedent to date of determination of its amount. As for the case cited, the fact of that case was very peculiar. There the landlord claimed additional rent for excess lauds separately from the original tenure treating the excess lands as forming a Separate tenure, & a claim for arrears of rent under such, circumstances was, in the absence of any contract to pay separately held to be untenable.'
13. It will be noticed that this decision as also the one reported in Jagannath's case, 29 Cal. 247, arrear was allowed not upon any statutory provision but upon general principles.
14. Monmatha Pal v. Surendra Nath : AIR1925Cal463 follows the decisions referred to above & Mookerjee & Rankin JJ , held that in respect of excess land in the occupation of a tenant the landlord is entitled to recover what is called back rent. The consistent view in this Ct has throughout, therefore, been that in suits for assessment of additional rent for excess area, arrears of back rent at the rate so fixed may be allowed by the Ct. under general principles.
15. A third line of cases is where in suits for assessment of rent in respect of a tenancy as a whole, arrears are claimed for the period anterior to the filing of the suits, such arrears being claimed at the rate to be fixed in that proceeding. There are two direct decisions of this Ct both being decisions by a single Judge; Gour Sundar v. Krishna Kamini : AIR1932Cal41 & Anil Kumar v. Pramatha Nath, 52 C. W. N. 316, clearly support the contention as made by the pltf. applt. Before we refer to the decisions of other Cts. we have to consider as to whether the view, expressed in these two cases, is contrary to a Bench decision in Jugal Charan v. Debendra Nath : AIR1940Cal572 As we have to consider the argument advanced on behalf of the deft. that a contrary view has been expressed in that case facts & the actual decision in this case will have to be considered in some detail.
16. Lands were held in this latter case under an invalid Lakhraj grant prior to 1790 & the right of the proprietor to the amount of revenue of such lands were principally founded upon Section 6 of the Regulation XIX  of 1793. B. K. Mukherji J. (Nasim Ali J. concurring) observed that such a proprietor had no right to claim any amount from the tenure-holders until the amount of revenue was actually settled under Section 6 of the Regulation, claim for recovery of damages for use & occupation for a period of three years prior to the institution of the suit was disallowed. If we examine the principles underlying the relevant provisions in Regulation XIX  of 1793, it will be apparent that in respect of invalid Lakhraj grant of an area less than 100 bighas, proceedings could be initiated for the assessment of revenue thereof. On the amount of revenue being so assessed, Govt. could not require the proprietor to pay this additional amount as revenue. The proprietor, however, is on the other hand entitled to take the benefit of such assessment & realise that amount from the holder of that invalid Lakhraj. Only after an amount of revenue is determined & assessed in the manner contemplated under Sections 6 & 9 of the Regulation XIX  of 1793, not only the amount is determined for the first time but what is more important, the right of the proprietor to realise the same from the holder of the invalid Lakhiraj is, by way of transference of authority, given to the proprietor to realise the same from the said holder of the invalid Lakhraj. The person in occupation who had been holding the land in assertion of Lakhraj rights has no liability to pay rent to the proprietor until ascertainment of revenue as under Regulation XIX  of 1793. The liability depends on the ascertainment of revenue & not otherwise. This decision, based upon Sections 6 & 9 of Regulation XIX  of 1793, must be read as limited to the special legal incidents arising on an interpretation of those provisions & cannot be regarded as an authority for the general proposition as was attempted to be used on behalf of the resp. & accepted by the Cts. below.
17. It must, therefore, be held that Jugal Charan v. Debendra Nath : AIR1940Cal572 did not lay down any general proposition & could not be held as being of any assistance in cases where claims for assessment of rent are brought under the general law & not under Regulation XIX  of 1793. This case was never meant to be so.
18. Gour Sundar v. Krishna Kamini, 54 C. L. J. 74 : (A. I. R. (19) 1932 Cal. 4l) & Anil Kumar v, Pramatha Nath, 52 C.W.N. 316, lay down a proposition which is clearly at variance & is contrary to the one held by the Patna H. C. in a series of decisions beginning from Gobinda Lal v. Ramsaran Lall, A.I.R. (8) 1921 Pat. 435 : (68 I. C. 433). Relying on the observations in this case Das & Adami JJ. held in Partap Mahton v. Mt. Wazirunnessa, 4 Pat. 604 : (A. I. R. (12) 1925 Pat. 559) that in a suit under the general law for assessment of a fair & equitable rent the pltf. is not entitled to claim rent in arrears at the rate to be assessed in the suit. Jagannath v. Jumanali, 29 Cal. 247 was distinguished as being a case under Section 52, Bengal Tenancy Act & being a suit for determining a claim for additional area where the rent of the holding is known & a proportionate amount is assessed for the excess area. It was pointed out that in suits_ under the general law for the assessment of a fair & equitable rent the Ct. proceeds with the view that rent had not been settled or paid hitherto & the Ct. is asked to determine what the rent is, presumably, to be paid in future. Accordingly assessment made in the suit can only have reference to future years.
19. Four years later Das & Fazl AH JJ. considered the question further in Jai Narain v. Kuleswar Singh, A I. R. (16) 1929 Pat. 233 : (117 I. O. 45) & delivering the judgment Das J. (who was a party to the earlier decisions) observed that though a claim
'for rent for the past years could not be maintained since no rent has been fixed for those years, either by contract or by the decree of a Ct. or anything other wise, but the defts. were in actual occupation of the land & there is no reason why the deft. should not pay damages for the use & occupation of the land.'
Damages based on the rate of rent fixed in that suit were accordingly allowed. In Pahwari Rai v. Janki Kuer, A. I. R. (16) 1929 Pat. 347 : (117 I C. 206), there were two analogous appeals, one arising out of a suit for assessment of rent on excess area under Section 52, Bengal Tenancy Act, while the other arose out of a suit for fixing a fair & equitable rents for Kabil Lagan lands. On the authority of Jagannath's case, 29 Cal. 247, back rent was allowed as claimed. With regard to the Kabil Lagan lands the latter decision in Jai Narain v. Kuleswar Singh, A. I. R. (16) 1929 Pat. 233 : (117 I. O. 45) was followed & a decree was passed for damages for use & occupation & not a decree of rent.
20. In Bisheswar Singh v. Patan Mahto, A.I.R. (17) 1930 Pat. 485: (123 I.C. 615) Kulwant Sahay & Macpheraon JJ. held that if a Ct. finds that there was no existing rent, a fair & equitable rent, which will operate in respect of the future years, it is open to the Ct. to pass a decree in favour of the pltf. by way of damages for three years be ore the institution of the suit, at the said rent or rate of rent subject to such modifications, if any, as may be found necessary because of the fact that while the rent operates in future the damages are assessable for years already passed. The decisions in Jai Narain v. Kuleswar Singh, A. I. R. (16) 1929 Pat. 233 : (117 I. C. 45) & Pahwari Rai v. Janki Kuer A.I R. (16) 1929 Pat. 347: (117 I. C. 206) were followed.
21. Although the Calcutta view is at variance with the earlier Patna view the difference now is a very limited one. While the views of Guha & Sharpe JJ. are that for the back period there may be decree as rent, the present Patna view is that the claim for the arrears would not be rent but damages
22. The view seems to be unquestioned that in a suit for assessment of rent there may also be a claim for arrears for the anterior period provided the tenant is found to have been in possession during such period & was holding either as a tenant or otherwise.
23. The question, however, arises whether the amount payable to the landlord as arrears, is to be allowed as rent or as compensation for use & occupation. There is always an implied covenant by a person occupying lands, the more so, where the occupation is qua tenant to pay for such occupation even where the quantum has to be fixed by a jury (Woodfall pp. 501, 502 & 519). A suit for damages for use & occupation can be maintained against a tenant who has occupied the premises by the permission or by sufference of the landlord though all the terms of the tenancy had not been settled with precision. The law implies a contract or terms by the tenant to pay to the landlord a reasonable sum for such use & occupation. After all the terms are settled or after the amount payable is ascertainable on fixed principles the amount which is to be decreed for the arrears is as rent. But if the amount is neither one which is already ascertained nor one which can be reasonably ascertained by the tenant on certain principles the decree is to be for compensation for use & occupation & not as rent : see also Lalji v. Barhandeo, 16 C. W. N. 89 at p. 91 : (13 I. C. 29).
24. In the present case, there was a relation-ship of landlord & tenant at least from the time when the entry in the record of rights was made. The amount payable, however, was not an ascertained one. Not until the Ct. determines as to what a fair & equitable rent, it is not possible for the tenant to pay the same or for the landlord to calculate the same. In such a case the amount of arrears is pavable not as rent but as compensation for use & occupation. In the present case, therefore, arrears can be allowed only as compensation.
25. A difficulty, however, arises from the fact that in the plaint as filed arrears were claimed as rent. It is not competent for the Ct. to allow in lieu of rent compensation for use & occupation as there is not even an alternative prayer. A suit framed as a suit for rent without any alternative claim made for use & occupation, the Ct. cannot pass a decree for compensation for use & occupation : Rachhea Singh v. Upendra Chandra, 27 Cal. 239, following Lukee Kanto v. Sumeeruddi, 13 Beng. L. R. 243: (21 W.R. 208 F.B.) & Surendra Narain Singh v. Bhailal, 22 Cal. 752.
26. The pltf., however, has prayed before me for amendment of the prayer in the plaint for the alternative claim for compensation for use & occupation. There is no objection to such prayer being allowed in this appeal, particularly as the Cts. below have referred to such an alternative prayer though not in the plaint.
27. As regards the amount claimed by the pltf. it is to be further noticed that the claim as made is not only for the amount of rent but for cesses & damages as well.
28. Cess is recoverable as rent & in computing the amount of damages, the amount of cess payable can be taken into consideration. But as regards the claim for damages or interest it will be unjust to allow the same on the facts as found in the present case. The amount of compensation payable was not known until it was fixed by the Ct. The tenant could not, therefore, have escaped liability for the damages claimed by tender or deposit of the amount. In the case of assessment of additional rent for excess area the position is altogether different. The tenant ought to know that the additional rent is to be assessed on the basis of the old rate & in such a case the tenant knows what the additional rent would be. He could have tendered the amount as at that rate. The failure of the tenant to do so was, as held by Banerjee & Brett JJ., in the unreported decision already referred to, is a sufficient ground for allowing interest on the amount payable as arrears.
29. I, therefore, hold that the pltf. is entitled to claim in the present suits the arrears calculated on the basis of rents & cesses for the period anterior to the filing of the suit at the rate fixed by the Ct. The decree will be one for a period of three years & not four as claimed. The pltf., however, will not be entitled to any interest or compensation on the amount decreed.
30. The appeals are accordingly allowed & the decrees passed by the Cts. below are varied as indicated above. In view of the special circumstances of these cases the parties will bear their own costs in this Ct. & in the Ct. of appeal below.