1. This is an appeal from a decision dated the 19th March 19.5 of the learned District Judge of Dinajpur sitting as a Special Judge appointed under the provisions of the Bengal Tenancy Act, reversing the decision of the Assistant Settlement Officer of Jalpaiguri. The proceeding which was before the learned Judge was a proceeding on an application made for assessment, of rent. The defence was that the rent was not liable to enhancement. It has been found that originally the tenancy was created before the date of the Permanent Settlement. The evidence showed and it was the common case that in the year 1868 the tenancy was sub divided and that, on that sub-division, the original tenancy came to be held at an apportioned rent. The Assistant * Settlement Officer, having regard to the decision of this Court in existence on the date of the hearing of the application, namely, a decision of Mr. Justice Sharfuddin and Mr. Justice Coxe, came to the conclusion that a mem subdivision was sufficient to create a new tenancy. That case, after the date of the decision of the learned Assistant Settlement Officer, received judicial comment in the case of Bisseswar Ray Chowdhary v. Bajenda Kumar Singha (1) and the learned Special Judge applying that case has reversed the decision of the Assistant Settlement Officer. In my opinion, the learnod Special Judge in reversing the decision of tbe learned Assistant Settlement Officer failed to make a material finding. The true Rule is laid down, I think, in the case of Mulluh Jhand Das v. Satish Chandra Dm (2) and the Rule that is laid down there is this: that when lands of a tenancy have been sub divided, if a Question arises whether new tenancies have been created, the answer must depend upon the intention of the parties. No inflexible Rule apart from intention can be laid down It was, therefore, essential for the learned District Judge to come to a finding whether the parties intended that, when this tenancy was subdivided in 186S, the old tenancy should exist with the rent apportioned or whether what was done amounted to the creation of four new tenancies. The learned District Judge having failed to come to any finding on that part of the case, his decree must be set aside and the case must go back to him to re-hear the appeal and make a proper finding as to what was the intention of the parties when the tenancy was sub-divided and then to make a proper decree according to law. Costs will abide the result of the re-hearing before the learned District Judge.
2. I agree.