Narsing Rau, J.
1. This is an appeal by the defendants in a suit brought by the plaintiffs for recovery of arrears of rent of an Etmam or under-tenure at Rs. 12-12-0 per year for the years 1341 and 1342 B.S. together with enhancement of rent under Section 52, Bengal Tenancy Act, with effect from the commencement of the period in suit. The trial Court decreed the suit at the unenhanced rate of Rs. 12-12-0 per year and dismissed the claim for enhancement. On appeal, the Subordinate Judge allowed the claim for enhancement and decreed the suit in full. This appeal is only against the enhancement allowed by the Subordinate Judge.
2. The main grounds taken in appeal are two: (1) that on the findings of the Court below, it cannot be said that the land held by the appellants is in excess of the area for which rent has been previously paid by them and (2) that in view of the Bengal Tenancy (Second Amendment) Act, 1939, the claim for enhancement under Section 52, Bengal Tenancy Act, cannot be decreed without certain additional enquiries which have been made compulsory by the Amending Act. The Amending Act provides that in determining in a suit under Section 52 whether there has been an increase in the actual area of the tenure or holding, the Court shall enquire whether the present areas of other tenures or holdings in the vicinity which were settled at or about the same time or on the same standard of measurement as the tenure or holding in suit show increases in area compared with the area originally settled similar to that alleged in respect of the tenure or holding in suit and if such increases are found to exist it shall be presumed that there has been no increase in the area of the tenure or holding in suit since the rent previously paid was settled. The Amending Act came into force on 24th August 1939, after the Subordinate Judge had disposed of the appeal before him; nevertheless, it is said, Section 3(1)(a) of the Amending Act makes its provisions applicable to the present suit. There have, of course, been no such enquiries in this suit as are required by the new sub-section.
3. As regards the first of these points the finding of the trial Court was that some lands of another Etmam or under-tenure had been wrongly included in the disputed tenancy. In arriving at this finding the Munsif relied upon a comparison of the Cadastral Survey and the Revisional Survey Maps. He considered that plots 2484, 2360, 2513, 2480 of the Cadastral Survey (1898) fell wholly or in part in plots 2020, 1746, 1898, 1899, 1901, 2009, 2010 and 2011 of the Revisional Survey (1931). The above Cadastral Survey plots were recorded at the time of that Survey as appertaining to another Etmam created by Ex. A, whereas the corresponding plots of the Revisional Survey have been recorded at the latter survey as appertaining to the disputed tenancy created by Ex. 1. The Munsif was therefore not satisfied that the excess area disclosed by the Revisional Survey in the disputed Etmam was not in reality part of the other and neighbouring Etmam for which rent was already being paid. On this aspect of the case the Subordinate Judge's findings are not clear. He does not appear to have reversed the Munsif's findings although he has allowed the claim for enhancement. Indeed, he appears to admit that there may have been some confusion:
There may have been a confusion in this sense as between the Cadastral Survey and the Revisional Survey that there has not been complete consistence between them in showing exactly the same lands as appertaining to the same tenancy. Having regard to the facts of this case I do not see why the plaintiffs should be driven to another suit, etc., etc.
4. In this state of the findings, it is impossible to uphold the decree allowing the claim for enhancement under Section 52, Bengal Tenancy Act. The appeal therefore succeeds on the first ground alone, but in addition there is the other ground which would make the decree untenable, at least without further enquiries. Section 3, Bengal Tenancy (Second Amendment) Act, 1939, which came into force on 24th August 1939 makes the amendments inserted in Section 52, Tenancy Act, by the Amending Act applicable, subject to such conditions as may be prescribed, to all suits under Clause (a) of Sub-section (1) of that Section which were pending on the date of commencement of the Amending Act, that is to say on 24th August 1939. The suit brought by the plaintiffs was, as will be explained presently, a suit under Section 52(1)(a), Bengal Tenancy Act, and it was still pending on 24th August 1939, in the sense that a second appeal had been preferred on 8th November 1937, and had not yet been disposed of. The result is that by virtue of Sub-section (1)(a) inserted in Section 52 by the Amending Act, certain enquiries are obligatory, and the result of those enquiries may be to create a conclusive presumption that there has in fact been no increase in the area of the Etmam in suit. There have been no such enquiries here.
5. The advocate for the respondents has attempted to meet this difficulty by contending that the claim for enhancement was not really under Section 52, Bengal Tenancy Act, but was based upon the stipulation in the lease Ex. 1, by which the Etmam was created. Whether this alters the legal position in any material respect or not, there is no doubt that the claim has all along been treated as being under Section 52, Bengal Tenancy Act. The trial Court's judgment describes the suit as being for recovery of rent together with 'enhancement of rent under Section 52, Bengal Tenancy Act.' The first point for decision in the case is described in the same judgment as being:
Can the plaintiff get any enhancement of rent under Rule 52, Bengal Tenancy Act, in this suit as it is framed?
6. When the claim was disallowed, the plaintiffs preferred an appeal to the District Judge and para. 1 of the memorandum of appeal ran:
The abovenamed plaintiffs-appellants being highly aggrieved and dissatisfied with the decision of the Sadar Munsif, 4th Court, decreeing the plaintiff's suit in part and disallowing plaintiff's claim for additional rent under Section S2, Bengal Tenancy Act, etc., etc., beg to prefer this appeal on the following amongst other grounds.
7. I have examined the original lease Ex. 1 and have found that although it provides for a separate settlement for excess lands, it mentions no rate of assessment for the excess so that the plaintiffs had to invoke the aid of Section 52(5), Bengal Tenancy Act, if they were to make an ascertainable claim for enhancement. For all these reasons I have no doubt that the claim made by the plaintiffs in this suit was under Section 52(1)(a) of the Act. Where an Amending Act is passed by the Legislature (as in this case) after the disposal of the suit by the trial Court, but during the pendency of an appeal, questions may arise as to whether the Act is clearly retrospective and intended to affect pending actions. It is always a question in each case whether the Act can be construed as having such effect New Brunswick Railway Co. v. British & French Trust Corporation (1939) A.C. 1 at p. 33. In the present instance the language of Section 3, Amending Act, leaves no doubt on this point. The Amending Act was intended clearly to have retrospective effect and to affect pending suits. The appeal therefore succeeds on both points and must be allowed. The decree of the lower Appellate Court is set aside; but in the special circumstances of the case, each party will bear its own costs throughout. Leave to appeal under Clause 15, Letters Patent, refused.