1. These two appeals arise out of two applications by the landlord for settlement of fair and equitable rent under Section 105, Bengal Tenancy Act. The landlord asked for enhancement of rent under Section 30(b) on the ground of rise in the prices of staple food-crops, and also for additional rent for additional area under Section 52. The first prayer was allowed by the Assistant Settlement Officer, and there was no appeal by the tenants. The second prayer however was rejected by both the Courts below, and hence the present appeals by the landlord. The defendants-respondents acquired the holdings by purchase, and upon recognition of their purchase, executed kabuliyats in favour of the landlord, agreeing to an enhancement of the jama by nine pies in the rupee. In the kabuliyats, which were expressed in more or less similar terms in both cases, the original holdings were described with reference to area as well as to jama and it was further provided that if on measurement any excess area was found, the landlord would be at liberty to make a fresh settlement in respect thereof. The landlord's case was that as the last Record of Rights which was finally published on 16th May 1934 showed the area of the holding in each case to be greater than the area stated in the kabuliyat, he was entitled to additional rent. He rested his claim expressly on the terms of Section 52, Bengal Tenancy Act.
2. Section 52 provides that every tenant shall be liable to pay additional rent for all land proved by measurement to be in excess of the area for which rent has been previously paid by him, unless it is proved that the excess is due to the addition to the tenure or holding of land, which having previously belonged to the tenure or holding was lost by diluvion or otherwise without any reduction of the rent being made. Admittedly there is no question here of any land having been so lost and subsequently added to the holding, so as to bring the case within the exception. The sole question, therefore, is whether the landlord has been able to prove by measurement the existence of any land 'in excess of the area for which rent has been previously paid' by the tenant within the meaning of the section. It is not disputed that the area as recorded in the last settlement proceeding was arrived at by measurement, and it is also not seriously questioned that such area was greater than the area mentioned in the kabuliyat, though not expressed in terms of the same unit of measurement. This being so, the landlord maintains that his case comes easily within the terms of Section 52, and his claim to additional rent follows as a matter of course. Both before the Assistant Settlement Officer and the Special Judge his case was that the area shown in the record of rights represented a real increase over the previous area, in other words that there was an actual addition of land to the original holding, the area mentioned in the kabuliyat being stated to be the actual area of the holding at the time. In second appeal however he is met by the finding, which is a concurrent finding of both Courts and therefore conclusive, that the defendants are not shown to be in possession of any lands outside the original boundaries. The learned advocate for the appellant has had consequently to shift his ground in this Court, and contend that Section 52 would equally apply without proof of any real increase of area. According to this argument, the area mentioned in the kabuliyat, if not the actual area, is still the area for which rent has been previously paid by the tenant, and as the area found at the subsequent measurement in the settlement proceeding is larger, there is an 'excess' within the meaning of the section for which additional rent would be due.
3. In answer, the respondent maintains in the first place that the appellant ought not to be permitted to take up a new position in second appeal. Secondly, on the main question under Section 52, his answer is that the landlord can succeed only if he can make out a real increase of area, and that this he can do by proving first the actual area of the holding at the inception of the tenancy, or, as was held in Gocool Chunder v. Jamal Biswas : AIR1928Cal553 , at any subsequent time when the rent was assessed or adjusted, and then by showing that subsequent measurement has disclosed a larger area in the possession of the tenant. This, it is said, the appellant has failed to establish in this case, and his claim must therefore fail.
4. The respondent's first objection is easily disposed of. The new case which the appellant is supposed to be making in this Court is in one sense not a new case at all. As will be presently seen, the burden which the landlord takes on himself under Section 52 is to show the area for or with reference to which the rent was assessed or adjusted at the inception of the tenancy, or at any intermediate assessment which followed. The appellant's case both in this Court and in the Courts below was that the area mentioned in the kabuliyat was such area; this he attempted to establish in the Courts below by showing that this was the actual area of the holding at the time, but the findings being against him, he sought to argue in this Court that this must in any case be assumed to be the area for which the previous rent was being paid. This is not in my opinion such a new case as the appellant is not entitled to raise in second appeal; it arises on the record as it stands, land is urged substantially as a question of law.
5. Turning to the main question involved in the appeals, quite a number of decisions have been cited on either side. Among others, the appellant has relied on the cases in Durga Priya Choudhury v. Nazra Gain AIR 1921 Cal 345, Gocool Chunder v. Jamal Biswas : AIR1928Cal553 and Gopal Chandra Chanda v. C.K. Nag & Co., Ltd. : AIR1936Cal375 ; and the respondent on Gouri Pattra v. Reily (1892) 20 Cal 579, Rajkumar Pratap Sahay v. Ram Lal Singh (1907) 5 C L J 538, Indu Bhusan Sarkar v. Jatu Mallick AIR 1921 Cal 611 and Manindra Chandra v. Kaulat Shaik : AIR1924Cal374 . It would be easy to multiply references not only from this High Court but also from the High Court at Patna, but mention need be made of only one other case in which some of the previous decisions have been considered, namely Jagatkishore Acharyya v. Kamaruddin : AIR1933Cal175 . I do not propose, nor will it serve any useful purpose, to analyse the case law, quite a respectable body, which has gathered round Section 52, Bengal Tenancy Act. All I need say is that each case ought to be studied with reference to its facts, and with reference to the particular point or points which arose therein, and an attempt to spell out of a decision a proposition of law which it did not intend to lay down can only lead to confusion. It will be more useful to turn to the words of the section itself, and try to understand their meaning. This may help to a great extent in elucidating the difficulties which appear to have arisen in some of the cases. Taking only the words of Clause (a) of Sub-section (1) of 8. 52, which are relevant for the purposes of the present case, it will be seen that a tenant is made liable
to pay additional rent for all land proved by measurement to be in excess of the area for which rent has been previously paid by him.
6. Analysing these words, it seems to me that in order to establish the tenant's liability for additional rent, the first thing necessary is to prove that the tenant is in possession of land in excess of the area for which rent has been previously paid by him, which may for the sake of brevity be referred to as the old area. Now, it is to be observed that the section expressly requires this to be 'proved by measurement'. The question is, what is the effect and meaning of the words 'proved by measurement'? Do these words necessarily imply that the old area and the new area, meaning by the latter the area which the tenant is found to be in possession of at the date of suit, are both to be proved by measurement? That this must be so is the view taken in some of the cases, though I do not find the decision in every case is based on the interpretation of these words. In my judgment, the collocation of these words in the context in which they occur does not require evidence to be given of two measurements, one to show what is the land for which the previous rent was fixed, and another to show what land the tenant is in possession now. What the section requires to be proved by measurement is the quantity of land held in excess, not the old area as well as the new area. If the words used to denote the old area are construed to mean actual area, then no doubt it can be argued with some plausibility that the old area must be proved to have been determined by actual measurement, just as much as the new area is required to be similarly ascertained.
7. This at once raises the question, and to my mind this must be the decisive question in the case, as to the true construction of the expression 'the area for which rent has been previously paid by him (tenant).' Does it necessarily mean actual area, or may it not be equally taken to refer to an estimated or assumed area, for or with reference to which the previous rent may have been assessed? It seems to me that to adopt the first meaning would be to ascribe to the words a much too restricted interpretation which is not justified by the section. The essence of the matter, as I regard it, is not to ascertain the actual area of the holding at the time the previous rent was assessed, but to determine the area with reference to which such assessment was made, and for this purpose it is necessary first to determine whether the previous rent was at all assessed with reference to area. Unless in fact this is first determined, there can be no basis of comparison of the new or present area with the old area for the purpose of deducing an excess for which additional rent would be due. If I am correct in this view, the mere fact that the old area was arrived at by measurement will not be enough: it will have to be further shown that the settlement was made after measurement on the basis of the area so ascertained. Per contra it follows that even where at the time of the assessment of the previous rent the area was not calculated on actual measurement but only upon a rough estimate, in other words, where it was a mere assumed area, such area might still be a proper basis for comparison with the new area as ascertained by measurement, if it is shown that the assumed area was the basis of the previous assessment. In this view it is clear that there may be room for the application of Section 52, even where the tenant is found to be holding land without any variation in the boundaries, the excess being merely due to the later measurement showing the area to be greater than the supposed previous area. The test is not what was the actual area before, but what was the area, actual or assumed, for or with reference to which the rent previously paid had been assessed. It is not necessary therefore that the subsequent measurement must represent a real increase of area. What Section 52 requires to be shown is land held in excess, and such excess may be established even within the limits of the original boundaries, provided of course it is shown that the previous settlement was on the basis of the supposed area. On the other hand, it may happen in a particular case that at the time of the assessment of the previous rent, the area was actually ascertained and specified in the patta or kabuliyat, but the settlement was still not on the basis of the area, the rent being fixed as a consolidated sum for the entire holding: there will be no question of any 'excess' area in such a case for which additional rent would be payable under the section, merely because the subsequent measurement shows the tenant to be holding a larger area. In other words, Section 52 may not apply even when there is a real increase of area. The decisions are all uniform in holding that where the rent previously paid was a consolidated rent, Section 52 would not apply, but the underlying principle leading to this result has not always been very clearly or correctly indicated. It seems to me however that the key to a correct understanding and application of the section lies in the meaning to be attached to the words of the section, as I have ventured to explain above.
8. Applying the above test to the facts of the present case, I accept the proposition put forward by the appellant that Section 52 may apply without proof of actual increase of area, and must reject the respondent's extreme contention that the actual old area must be proved. But to say this is not to hold that the appellant must succeed. Whether the area stated in the kabuliyat here is taken to be the actual area of the holding at the time the kabuliyat was executed, or for the matter of that at the inception of the tenancy, or it is merely a supposed or assumed area, the appellant does not discharge the burden that rests on him under 8. 52 unless he can further show that such area was in fact the basis of the settlement under the kabuliyat. This in my opinion he has failed to show. This is not and cannot be shown by merely pointing to the statement of area as well as of rent in the kabuliyat. The kabuliyat has to be looked at as a whole. The holding may have been described in the body of the document with reference both to area and to rent, but that does not ipso facto show that there was any necessary relation between the one and the other. There is in fact a schedule in the kabuliyat giving the boundaries of the land demised, and there is no indication that the intention was not to let the specific parcel of land lying within those boundaries. The statement of the area was to my mind merely a part, and an immaterial part of the description of the holding. As regards the provision in the kabuliyat that if on a subsequent measurement an excess area is found, the landlord may at his discretion make a fresh settlement in respect thereof; this, if any thing, confirms the view that the rent was a consolidated rent for the entire holding. Incidentally it also shows that the excess contemplated is not an excess area within the original boundaries, but a real increase of area by the addition of new land to the holdings, and so it is not possible for the landlord to succeed on the basis of the contract if he cannot do so on the basis of Section 52.
9. On the findings, and upon a construction of the kabuliyat in each case, my conclusion therefore is that the rent previously paid as stated in the kabuliyat was not assessed with reference to the area stated therein, and that the landlord has accordingly failed to show, merely by referring to the statements of rent and area in the kabuliyat and to the area as subsequently recorded in the settlement proceeding, that any land is held by the tenant in excess of the area for which rent has been previously held by him. The result is that these appeals must fail, and are hereby dismissed with costs, one hearing fee in both. The prayer for leave to appeal under Section 15, Letters Patent, is granted.