1. This appeal arises from an application made to the Munsif under Section 7, Ben. Ten. Act, which resulted in an ex-parte order. He found, on the evidence before him, that the gross collection' from the tenure was 8 aras and 6 kuris odd of paddy and Rs. 32-9-0 in money rent. He valued the paddy at an agreed rate which brought the total gross collection to Rs. 130 after deducting one-third from the value of the paddy for what h& called 'uncertainties in the value of the paddy and for other uncertain elements.' He left to the defendant 50 per cent, of profits and thus fixed the rent of the tenure at Rs. 65. From this decision both parties appealed to the Subordinate Judge of Midnapur. For the tenure-holder it was contended that the learned Munsif should not have heard the case exparte. The learned Subordinate Judge's finding on this point was that the defendants had had enough indulgence and that they could not complain that they did not get more. The second contention for the tenure-holder was that the learned Munsif did not come to any finding as to the existence of a customary rate. The learned Subordinate Judge found that, while there was no express finding on this point, yet there was evidence on the record that there was no such customary rate existing. It is the third contention of the tenure-holder which found favour with the learned Subordinate Judge. This was that the learned Munsif should not have made the value of the produce rent the basis of his calculation, but should have ascertained and substituted for it a fair and equitable cash rent. The learned Subordinate Judge was of opinion that the principle involved in Sub-section 4, Section 7, should have been applied to so much of the land as paid the produce rent, because, at any future date on which proceedings might be taken under Section 40, Ben. Ten. Act, equilibrium might be disturbed by the settlement of cash rent under that section. For this reason he remanded the case to the Munsif for a fresh trial. The appeal of the landlord was apparently not seriously pressed before the learned Subordinate Judge. The landlord has appealed against this order of remand.
2. It is contended on behalf of the respondents, in the first place that, no appeal lies. It is said that the order of remand was not one under Order 41, Rule 23, but was one under Section 151, Civil P.C., and, therefore, it is urged, there is no second appeal. In this respect reliance is placed upon a decision of this Court in Mohendra Nath Chakravarti v. Ramtaran Bandopadhya  31 C.L.J. 357. For the appellant it is contended that in form and in substance this was an order under Order 41, Rule 23, and that consequently, on the authority of Basumati Debi v. Taritbasini Dasi  31 C.L.J. 354, which was followed in Prosanna Chandra v. Baidya Nath Mistri  31 C.L.J. 360, there is a second appeal. But we are satisfied that in the present instance the order complained of was not in form or in substance one under Order 41, Rule 23, and these decisions have, therefore, no application. On the other hand reference is made to a decision of this Court in Bhairab Chandra Butt v. Kali Kumar Dutt A.I.R. 1923 Cal. 606. It would appear, at first sight, that this later decision is in conflict with that in Mahendra Nath v. Ramtaran Bhattacharjee  31 C.L.J. 357, to which I have just referred. In the earlier decision, however, the case was not considered upon the footing of the remand being one under Section 151, and it was upon this footing that this Court in the later decision held that there was a second appeal. It seems to us plain that the remand here cannot possibly fall under either of the rules contained in Order 41, but was made under Section 151. The result in our opinion is that an appeal does lie to this Court.
3. Turning then to the merits of the appeal : it is impossible for a Court acting under Section 7, Ben. Ten. Act, to arrive with absolute accuracy at a rate of rent. The best that the Court can do is to make an approximation to what the rent of a tenure should justly be. It is possible that the more refined method which the learned Subordinate Judge directed to be applied might result in a. somewhat closer approximation to what the rent to be fixed under Section 7 should be though it is impossible to foresee what result might ensue from the application: in the present case; that is, whether it would increase or decrease the rent as fixed by the Munsif. It is, howevere necessary to point out that there is latent, in the learned Subordinate Judge's method, the same defect, though possibly in a less-degree, as in that of the learned. Munsif. For it does not follow that a fair and equitable rent, such as is spoken of in Sub-section 4, Section 7, will be the same as the moneyrent which may, at some future date, be fixed under Section 40. Bearing this in view, it seems to us that a remand on this ground was neither necessary nor desirable, and that a possible increase in accuracy is quite incommensurate with the expense to which the parties would be put by a further investigation of the matter. In this view we are unable to support the order made by the learned Subordinate Judge. In the ordinary course of events we would remit this case to the learned Subordinate Judge in order that he might rehear the appeal. In the circumstances, however, we do not think that this course is in the interest of either party. The facts are now before us and we think that it is possible for us finally to decide the question between them. As I have pointed out, the first two objections taken by the tenure-holder to the result arrived at by the learned Munsif did not find favour with the learned Subordinate Judge and in this respect we agree with his view. The only point which remains, therefore, is this matter of the produce rent of a part of the land. In this respect we have little fault to find with the result at which the learned Munsif had arrived and we are of opinion that the rent of the tenure which he has fixed is just and equitable and that the proper course for us to take is to set aside the order of the learned Subordinate Judge and to restore the order of the Munsif; This we accordingly do.
4. The parties will bear their own costs in all Courts.
5. Let the record be sent down at once.
6. I agree.