1. These appeals are by the tenants defendants in suits for rent. It appears that the rents were originally assessed in 1263. In 1314 there was a fresh measurement by the landlord and fresh rents were settled between the landlord and his tenants. Apparently rent was paid as agree upon for a few years but the rates of rent were contested by the tenants in the present suits which are for the years, 1322 and 1323. The defence taken was that the enhancement of rent contravened the provisions of Section 29 of the Bengal Tenancy Act, that in any case the rates fixed were not fair and equitable and consequently not recoverable, and in three of the appeals a further ground was taken in the lower Appellate Court that one of the defendants had died during the progress of the suit in the first Court and his heirs had not been substituted. These points have been repeated here.
2. The first point argued is the second of these which I have mentioned, namely, that the enhanced rents are not fair and equitable. Reference is made to sections 24 and 27 of the Bengal Tenancy Act. Under Section 27 no doubt the burden of proof is on the landlord, because the tenant starts with the presumption in his favour that the rent is fair and equitable until the contrary is proved. The learned Judge has found as a fact that these rants are fair and equitable. But it is said that the Bengal Tenancy Act provides in Sections 30 to 35 the tests for the purpose of ascertaining whether the rent is fair and equitable and reference is made particularly to Section 30(a). Now it is quite clear to my mind that the provisions in these sections 30 to 35 are not conclusive, because Section 35 itself provides that even though the conditions specified in the previous sections may exist, the Court shall not in any case decree enhancement which is unfair or inequitable. The Judge has in fast found that the rents that were settled in 1314 are similar to the rents paid for lands in the immediate vicinity; and he has further found that the increase for cultivated land has only been from half an anna per bigha to 3 annas per bigha, which he holds to be not excessive, though he finds at the same time that the rate of increase for bustee land is large. He also finds as a fact that the rates settled in the first instance were low in order to attract tenants for the cultivation of indigo. It is suggested that this last finding of the Judge is not a good finding, because in dealing with the applicability of the third proviso of Section 29 he held that that proviso did not apply. The reason why he did so is that some of the tenants still cultivate indigo. Therefore, obviously the proviso will not apply in their case, and as regards the others who had ceased to cultivate indigo, the Judge finds that they ceased to do so long before the rents were altered in 1309 and, therefore, it could not be said that they agreed to pay rent at a higher rate because they were released from the obligation to cultivate indigo. There is nothing in the least inconsistent in the two findings of the learned Judge. What we then have is this fast, that for 50 years the tenants held at a rate which was a low rate because they cultivated indigo; that the rates have been raised only from half anna to three annas per bigha for cultivated land and the rates so arrived at the learned Judge finds to be fair and equitable. In coming to that conclusion he was to my mind perfectly justified.
3. The next point taken is that Section 29 bars the increase of rent in so far as it is in excess of two annas in the rupee. The learned Judge referred to a decision of this Court to the effect that Section 29 had no application in cases where the increase of rent had been agreed upon in order to settle a dispute either as to the rate of rent or as to the area. The learned Judge finds there was no dispute as to the rate of rent, but he finds in fact there was a dispute as to the area. That finding of the learned Judge is criticized because he says that neither party had been able to establish what was the standard of measurement used on the occasion of the previous measurement. It is true the learned Judge comes to that finding, but he points out in a very careful judgment that the differences now found to exist between the areas shown in the two measurements cannot possibly be due to alteration in the standard of measurement, because the difference cannot be explained on the footing of measurement either by the standard alleged by the plaintiff or that alleged by the defendant. Having come to the conclusion that there was a bona fide dispute as to the area, which is a finding of fact, the learned Judge was perfectly justified in applying the ruling of this Court already referred to and in holding that Section 29 was not a bar to the enhanced rate.
4. The other point taken has reference only to three of the Appeals Nos. 1207, 1311 and 1312 to this Court. It was that one Dabir Joordar, who was one of the defendants, died during the progress of the suit in the lower Court and his heirs had not been substituted. This ground was not taken in the grounds of appeal to this Court, and the learned Vakil admits that this is a technical point and that he cannot claim that the suits must fail, because the right to sue subsists against the remaining tenants, the liability to pay rent being joint and several.
5. The appeals accordingly fail and are dismissed with costs.