Pigot and Banerjee, J.
1. The only question raised in this case is whether the plaintiff who is a fractional shareholder in the superior tenure, in separate receipt of rent from the tenant-defendant in respect of his share, is entitled to maintain this suit for arrears of rent in accordance with the terms of a kabuliyat executed by the predecessor of the defendant. The First Court decided the question in favour of the plaintiff, but the Lower Appellate Court has reversed that decision.
2. It is contended before us, on behalf of the plaintiff, that this is not a suit for enhancement in the ordinary sense of the term, nor even is it a suit for additional rent for land found in possession of the tenant in excess of what he was paying rent for, but it is a suit for arrears of rent under the terms of the kabuliyat, at the original rate specified in that document in respect of the land demised, part of which was left unassessed at the time by reason of its not being then culturable; and that, as the plaintiff is admittedly in separate receipt of his share of the rent, there can be no bar to his maintaining the suit.
3. We think this contention is sound. The kabuliyat provides that, of the 19 1/2 bighas of land demised, rent shall be paid at the rate of Re. 1-8-0 per bigha in respect of only 8 bighas, the remaining 11 1/2 bighas being unculturable, and that, when these 11 1/2 bighas become fit for cultivation, rent shall be assessed thereon at the rate of Re. 1-8-0. These being the terms of original letting, and the additional rent that is claimed being in respect of these 11 1/2 bighas, the suit is clearly not one for enhancement of rent in the sense in which the term is used in the Bengal Tenancy Act, nor is it a suit for additional rent for excess land within the meaning of Section 52 of that Act; and if the plaintiff is entitled to realize his share of the rent separately, as he admittedly is, there is no reason why he should not be entitled to claim separately the rent that is payable, not upon any fresh adjustment of the rent inconsistent with the continuance of the old tenancy, but upon an ascertainment of the rent payable in accordance with terms of the original letting.
4. Two cases were relied upon by the learned Vakil for the defendant-respondent--Guni Mahomed v. Moran I.L.R. 4 Cal. 96 and Gopal Chunder Das v. Umesh Narain Chowdhry I.L.R. 17 Cal. 695 but they are clearly distinguishable from the present for the reasons stated above. In the former case Garth, C.J., in delivering the judgment of the Full Bench; said: 'The rent law, in our opinion, does not contemplate the enhancement of a part of an entire rent; and the enhancement of the rent of a separate share is inconsistent with the continuance of the lease of the entire tenure'. And in the latter the Court held that the same principle that was applicable to a suit for enhancement applied also to a suit for additional rent for excess land found in the tenant's possession. In both the cases the ground of decision is that any alteration of the rent will be inconsistent with the continuance of the original tenancy. The claim in the present case, however, does not involve any such inconsistency.
5. We think therefore that this appeal ought to be allowed and the decree of the Lower Appellate Court reversed, and that of the First Court restored, with costs in this Court and the Court below.