O'Kinealy and Hill, JJ.
1. This is an appeal from the decision of the District Judge of the 24-Perganas. It arises out of an action under Section 30 of the Rent Law, seeking to enhance the rent of a tenant under Clause (a) of that section, which says that 'the landlord of a holding may sue for enhancement if the rate of rent paid by the ryot is below the prevailing rate paid by occupancy ryots for land of a similar description and with similar advantages in the same village, and that there is no sufficient reason for his holding at so low a rate.'
2. In the Court below the Judge came to the conclusion that the plaintiff had not succeeded in proving any prevailing rate; but upon the authority of a case of Dena Gazee v. Mohinee Mohun Doss 21 W.R. 157, he held that he might, in this particular case, take the average of the different rates current in the village and treat that as the prevailing rate. That, no doubt, was a peculiar case; but with the exception of that case, in all other cases, from the case of Shadhoo Singh v. Ramanoograhall 9 W.R. 83 upwards, the rate actually paid and current in the village has always been taken to mean the 'prevailing' and not the 'average' rate. In the new Act the words 'prevailing' and 'average' are used in different senses indifferent sections. In Section 30, for instance, reference is made to the 'prevailing rate'; in Section 32 reference is made to 'average prices' and not 'prevailing prices'; in Section 40, Sub-Section 4, Clause (a) the terms 'average money rent,' and in Clause (b) the 'average value of the rent' are mentioned as distinct from 'prevailing rate.' We think, there fore, that the words 'prevailing rate' in this case are used in the same sense in which they are used in the earlier cases under Act X of 1859.
3. The result is that this appeal is decreed, the decision of the Lower Appellate Court is set aside, and the plaintiff's suit dismissed with costs in all the Courts.