1. Appeal No. 378 of 1929 with cross-objections.-- This appeal is directed against the judgment and decree of the Subordinate Judge, Cachar, modifying those of the Munsif of Hailakandi, passed in a suit brought by the plaintiff appellant in this Court, for enhancement of rent and for recovery of rent at the enhanced rate. The plaintiff claimed enhancement at the rate of Rs. 15 per paikast kiar, and the claim so made was on the basis of a kabuliyat, executed on 29th May 1896, containing a stipulation to the effect following:
If the Government revenue due on the land is enhanced after the period of the lease, rent can be enhanced after taking into consideration the rate of rent for similar lands with similar rights in the neighbourhood.
2. The plaintiff's case was that there was enhancement of the Government revenue in the last survey, and that the prevailing rate of rent of land of similar class was higher than the rate paid by the defendant, and that in view of the great demand for land in the locality, he was entitled to realize rent in respect of the tenancy in question at the rate mentioned in the plaint. The defendant in the suit, the tenant, resisted the plaintiff's claim mainly on the ground that the rate of rent claimed was excessive. There were other questions raised in the defence of the defendant; but a reference to them is not necessary for the purposes of this appeal.
3. The trial Court upon the evidence adduced in the case, came to the conclusion that the rate of rent claimed by the plaintiff in the suit did not seem to be exorbitant; and in view of two documents used in evidence on behalf of the plaintiff--one: a decree on compromise, and the other a contested decree in a suit for rent, and on a consideration of all the circumstances of the case, assessed the rate of rent payable by the defendant at Rs. 12 per paikast kiar. Both the parties to the suit appealed against the decision arrived at by the trial Court. The Court of appeal below, reversed the decision of the trial Court, and held that the plaintiff was entitled to realize rent at the rate of Rs. 5 only per kiar.
4. The Court of appeal below first considered the condition of the land comprising the tenancy in question at the time when the tenancy was created in 1896; it then noticed the improvements made by the tenant at his own cost. The learned Judge in the Court below has further noticed how the town in which the land is situated, has grown in importance recently, and has observed that if anybody could equitably demand 'betterment fee' from the defendant, it was certainly not the plaintiff, but some local authority. So far as the materials upon which the trial Court based its decision the Court of appeal below has discarded them altogether; the compromise decree which supported the plaintiff's claim in suit, was not taken into consideration for the reason that ' the defendant might very well urge' (although in point of fact it was never so contended), that it was a collusive decree.' With reference to some of the other materials on the record, it has been said that there was evidence on the record that 'people having lesser rights than the defendant' paid rent at Rs. 10 to Rs. 20 per kiar. The final conclusion arrived at by the Court below appears to have based upon the increment in the Government demand in previous years, and on the proportion or ratio which such demand bore the rent previously paid by the tenant. What was taken into consideration was this: at the time of the lease the Government revenue was at the rate of nine and half annas per kiar, and the rent for the tenancy in question was fixed at Rs. 2-8-0 per kiar; in the year 1900, the revenue payable to Government was fifteen annas nine pies and the rent of the tenancy was Rs. 3 per kiar. In 1918 the Government revenue was fixed at Re. 1-4-0 per kiar and it is apparent that the rate of Rs. 5 per kiar has been fixed in the present case, by the Court below on the proportionate increase in rent as indicated above. In my judgment the decision of the Court below cannot be supported on any of the grounds stated in its judgment. The learned Judge has failed to consider the plaintiff's evidence in support of his claim, and has made observations in. his judgment the exact significance of which is not at all clear to me. In granting an enhancement in the manner he has done, the principle of assessment as laid down in the kabuliyat of 1896, by which the tenancy was created has, to my mind been entirely overlooked. It was incumbent upon the learned Judge in the Court of appeal below to proceed upon the materials placed before the Court, in support of the plaintiff's claim that he was entitled to an enhancement of rent on a consideration of rate of rent prevalent in the locality, in respect of similar land with similar rights. In considering the rate of rent payable in respect of land of similar description and with similar advantages, the time to be taken into account was not, in my judgment, the time when the tenancy was created in 1896, but the time of suing for enhanced rate of rent. Land of similar description with similar advantages at the time when enhancement was claimed by the plaintiff, was to be considered: see in this connexion Prosonno Kumar v. Radha Nath  7 W.R 97. The tenant in my opinion was not entitled to allege the expenditure of their own capital against the claim of the landlord in the present suit for enhancement of rent, on the basis of the stipulation contained in the kabuliyat of '1896, to which reference has been made above.
5. Regard being had to the unsatisfactory nature of the judgment of the Court below, which to my mind proceeds upon a wrong basis, and which discards the positive evidence on the side of the plaintiffs on entirely insufficient grounds, the case must be sent back to the Court of appeal below. The appeal before that Court will be reheard in the light of the observations made in this judgment, and a decision on the question of enhancement of rent arrived at. It will be open to the Court of appeal below to allow the parties to adduce further evidence in the case, if the adoption of such a course is deemed necessary, for the ends of justice.
6. In the result this appeal is allowed, the decision and decree of the Court of appeal below are set aside, and the case remanded to that Court for a fresh decision. Costs in the case will abide result after remand. The cross-objections preferred by the defendant-respondent in this appeal, have not been pressed. The cross-objections are dismissed without costs.
7. Appeal No. 2828 of 1929 with cross-objections.--The question arising for consideration in this appeal are somewhat similar to those dealt with in Second Appeal No. 378 of 1929 which has just been decided by me.
8. The document on the basis of which enhancement of the rate of rent and recovery of rent at the enhanced rate were claimed in the suit, contained stipulations exactly similar to those in the kabuliyat in the suit out of which Second Appeal No. 378, mentioned above, arose, As in that case, the trial Court held in the suit out of which this appeal has arisen that the plaintiff was entitled to an enhancement of the rate of rent, which was fixed at Rs. 12 per paikast kiar. The decision of the Court being based mainly if not solely upon the compromise decree which was a piece of evidence in support of the plaintiffs in the suit out of which Second Appeal No. 378 arose. It was upon that compromise decree and upon the circumstances of the case before it, that the Court of first instance assessed the rate of rent payable in respect of the tenancy in question, at Rs. 12 per paikast kiar. The Court of appeal below has however reversed the decision arrived at by the trial Court in consideration of various matters, but without any reference whatsoever to the document on which the decision of the trial Court was principally and if not wholly based. There is no doubt that the learned Judge in the Court below has gone into the case before him fully, but omission of any reference to a piece of documentary evidence of vital importance cannot possibly be justified. The learned Judge in the Court below has observed that under the patta on which the plaintiff's claim in suit was founded, the plaintiff's right to enhancement was established. As to the rate of enhancement to be allowed, the view expressed by the Court below was that tenancies which came into existence recently between 1326 to 1332 B.S. and the rate of rent in respect of which varied from Rs. 10 to Rs. 20 on account of the present excessive demand for lands in the locality, could not be taken into consideration, in determining what should be the fair enhancement in the case of the defendants' tenancy. It was also stated that the defendant's rental should be less than what was ordinarily charged now in the locality regard being had to the fact that the defendants' tenancy commenced under more disadvantageous circumstances. Mention was also made of the origin of the defendants' tenancy, of the present civic importance of the town in which it was situated, as also of the fact that improvements had been effected by the tenants at their own expense. The finding arrived at by the Court below was that the plaintiff had not proved the prevailing rate of rent for land of 'similar status like the lands in suit.' The Court below has however fixed the enhancement approximately, at the rate of Rs. 5 per kiar, and the increase was allowed for the reason that; 'there has been great increase in the prevailing rate of rent,' and in consideration of the fact that although Government revenue was increased so far back as 1918 the defendants avoided paying increment.
9. It appears to me that in addition to the material defects in the judgment of the Court below in not having adverted to the evidence on which enhancement was granted by the trial Court, the basis on which the Court of appeal below has proceeded, the principle of assessment of the rate of enhancement adopted by the Court, if any principle has been followed or any basis adopted at all, the basis of enhancement, as stated in the patta on which the plaintiff's claim in suit was founded, has, to my mind, been lost sight of altogether. In my judgment the tenants were not entitled, at the end of a long period, to allege the expenditure of their own capital against the landlord's claim to an enhancement of rent. The time which has to be taken into account in determining the prevailing rate of rent in the locality was the time of the claim by the landlord for enhancement, the time of the institution of the suit, and not the time when the ten-ant was led into possession: see Prosonno Coomar v. Radha Nath. Tenancies of similar description and with similar advantages in the neighbourhood have to be taken into consideration under the stipulation contained in the patta creating the tenancy, and rate of rent payable by the tenants is to be enhanced without reference to improvements effected by them, and without reference to the civic importance of the town, matters more or less irrelevant for the purpose of determination of the question arising for consideration in the present case in view of the terms of the tenancy. If other tenancies have benefited by the growth of the town, the tenancy in question has also derived that benefit; and the plaintiff was entitled to an enhanced rate of rent if tenancies of similar description at the time of the institution of the suit by the plaintiff bore a higher rate of rent. It may be mentioned that if the prevailing rate of rent cannot be determined, or if it were impossible to come to a definite conclusion as to what was the prevailing rate, the Court would be justified in taking an average: it may be the only and the proper course to adopt, if a distinctly prevailing rate cannot be found: see Dena Gazi v. Mohinee Mohan  21 W.R. 157.
10. In view of the conclusion I have come to in the case before me, that the basis of assessment, if any adopted by the Court below, the principle upon which the rate of Rs. 5 has been assessed at the enhanced rate of rent per kiar, are not correct in view of the contract between the parties concerned, and regard being also had to the circumstances that no sufficient reason has been assigned for reversing the decision of the trial Court fixing the rate of rent payable by the tenants at Rs. 12 per kiar, based upon documentary evidence to which no reference even, has been made by the Court below, the judgment and decree of the Court of appeal are set aside, and the case is sent back to that Court for a further hearing, and for a fresh decision on the questions arising for consideration of the plaintiff's case. It will be open to the lower Court to take further evidence in the case, if that be considered necessary.
11. The appeal by the plaintiff is allowed, and the cross-objections preferred by the defendants-respondents are dismissed without costs. The case is remanded to the lower appellate Court for decision. Costs in the case including costs in appeal will abide the decision after remand.
Appeal No. 322 of 1930 with cross-objections.
12. This appeal is directed against the decision of the same learned Subordinate Judge who decided the case in which Second Appeal No. 2828 of 1929 arose, and involves questions similar to those raised in that appeal. The plaintiff's claim for enhancement of the rate of rent payable by the tenant-defendant in the suit was allowed by the trial Court to the extent of Rs. 12 per paikast kiar. The trial Court took into its consideration, the materials placed before it, and came to the conclusion that the enhancement of rent at the rate of Rs. 15 as claimed by the plaintiff in the suit was not excessive; that it was but fair and equitable that, other things remaining the same, higher rents than those mentioned in other kabuliyats placed before the Court should be paid for the land in the defendants' tenancy, settled on terms more favourable regarding the stability of tenure. The defendants' contention that he having improved the land at his own expense, was not liable to pay enhanced rent was expressly negatived by the trial Court in this case; and the rate of Rs. 12 was fixed with reference to the compromise decree used in evidence in the case in which Second Appeals Nos. 378 and 2828 of 1929, and four kabuliyats in respect of lands in the neighbourhood, similar to the land of the defendants' tenancy, after taking all other circumstances into consideration.
13. The Court of appeal below has reversed the decision of the trial Court, and has allowed enhancement of the rate of rent at Rs, 5 only per paikast kiar, as in the other case decided by it, out of which Second Appeal No. 2828 mentioned above arose. It has been held that the trial Court was wrong in thinking that the defendant was to pay higher rent for the reason stated by it; according to the Court below, the law is that 'higher the status of the tenant, the lower is the rent.' The improvement made by the tenant was taken into account, as also the rate at which the Government revenue was increased. For reasons stated in my judgment in Second Appeal No. 2828 of 1929, I am unable to accept the basis of assessment indicated by the learned Subordinate Judge in the Court below; and there was no justification for keeping the materials on which the decision of the trial Court was based, out of consideration altogether.
14. The case will therefore go back to the Court of appeal below, for a further hearing of the appeal before it, and for a fresh decision on the question of enhancement as raised by the plaintiff in the suit, on materials on the record, as also upon such other materials as may be placed before the Court, if it be considered necessary that additional evidence should be taken for arriving at a proper decision.
15. In the result the appeal is allowed; the cross-objections preferred by the defendant-respondent are dismissed without costs, and the decision and decree of the Court of appeal below are set aside, the case is remitted to the lower appellate Court for decision in the light of the observations made in this judgment and in my judgment in Second Appeal No. 2828 of 1929. Costs in the case including the costs in this appeal will abide the decision after remand.
16. It is desirable that the case in which this appeal has arisen, as well as the two other cases in which Second Appeals Nos. 378 and 2828 of 1929 arose, should be heard together and decided by the same Judge.