S.K. Ghose, J.
1. These three appeals arise out of three suits instituted by the landlord for enhancement of rent of three tenancies after serving notice under Section 13 of Act 10 of 1859 and for realization of arrears of rent at the enhanced rate. In Suit No. 43 which has given rise to Second Appeal No. 1094 the tenancy is Jote Mohan Bhog and comprises 7285 acres held at a rental of Rs. 16-4-0 per year. In the notice the landlord claimed at an enhanced rate at Rs. 1979-11-0. The Deputy Collector, before whom the suit was instituted decreed' the suit at Rs. 537-12-0. Both parties appealed to the District Judge. The District Judge dismissed the suit, holding that the lands are not agricultural and Act 10 of 1859 does not apply. Against that decision the plaintiff landlord has filed Second Appeal No. 1094 of 1936. In Suit No. 44 which has given rise to Second Appeal No. 1362 the tenancy which is described as Nipur Bigha comprises 417 acres held at a rental of Rs. 22-8.0. In the notice the enhanced rent claimed is Rs. 717R-7-0. The Deputy Collector decreed the suit at Rs. 131-4-7. Both parties appealed. The learned District Judge allowed the appeal of the tenant partially and reduced the enhancement to Rs. 109 6-6. Against that decision the tenant defendants have filed Second Appeal No. 1362 of 1936.
2. In Suit No. 45 the tenancy is described as Jote H. G. York or Ba Ranga Das and comprises an area of 22'74 acres held at an annual rental of Rupees 5-10.0. In the notice the enhanced rent claimed is Rs. 84. The Deputy Collector decreed the suit at Rupees 66.6-7. Both parties appealed. The District Judge reduced the enhanced rent to Rs. 55-5-6. Against that decision the tenant defendants filed Second Appeal No. 1363 of 1936. In the tenants' appeals S. A. Nos. 1362 and 1363 of 1936 the first contention of the appellants is that the plaintiffs are not entitled to get a decree for rent at an enhanced rate on the ground stated in the judgment of the Court of Appeal below. The suits are under Act 10 of 1859, not under the Bengal Tenancy Act: therefore to justify enhancement one must look to the law as prevalent under the former Act and not to that under subsequent conditions. Now Act 10 recognises that an under-tenure is liable to enhancement of rent, but it does not prescribe any specific grounds for such enhancement, as it does in the case of a raiyat by Section 17. So it has been held that in the case of a middleman, the grounds of enhancement must be those for which he was liable prior to the passing of the Act, and if the enhancement is claimed on the ground of being fair and equitable, that has always been subject to the condition that the rent is not more than what is paid by similar tenures in the pergunnah or neighbourhood : Girish Chandra Ghose v. Ramtunoo Biswas (1869) 12 WR 449. That case derives authority from the Privy Council decision in Dhunput Singh v. Gooman Singh (1867) 11 MIA 433. The latter in its turn refers to Dayaram's case 1 SDA Reps 139 and the note of Sir Wm. McNaughten at the foot of it which shows that:
Where the suit is against an intermediate tenant the enhancement ought to be made according to the pergunnah rate of rents payable, not' by raiyats, but by the holders of similar tenures.
3. It seems to me that these decisions are not confined to the specific provision in Section 51 of Regn. 8 of 1793 but are based on broader and more general principles. Regn. 8 is the only statutory provision bearing on the subject prior to Act 10. Section 51 of the Regulation does not expressly mention 'pergunnah rate' as a condition. In order to prevent undue exaction from zamindare it lays down that rents of dependent taluqdars will not be enhanceable except on four grounds one of which is 'the conditions under which the taluqdar holds his tenure.' The principle that the taluqdar is not liable to pay more than the pargannah rate for similar tenures comes under this class, which indeed does not lay down a new rule for the first time: Brojo Soondur v. Kalee Kishore (1866) 8 WR 496 and Raja Nilmony Singh Bahadoor v. Ram Chakerbutty (1874) 21 WR 439. Dr. Basak for the respondent landlord has pointed out that Regn. 8 does not apply to a district like Jalpaiguri or Darjeeling which comes under the Scheduled Districts Act 14 of 1874. But this really makes no difference. If tenure-holders had the privilege of not being liable to pay more than the customary rate, they did not lose that privilege in the scheduled district by the Act of 1874. The principle of justice, equity and good conscience was made a statutory principle by Section 37, Civil Courts Act 12 of 1857 which enacts that the Courts will apply that principle where there is no other law for the time being in force. If it be contended that the principle of 'fair and equitable rate' has always existed, no case has been shown to us in which the Court has given a decree on that ground without considering the question of customary rate. In this connexion attention has been drawn to the remarks of Sarada Charan Mitra in his Land Law of Bengal, Edn. 2, pp. 185 and 186. The learned author after referring to Regn. 8 of 1793 and Act 10 of 1859 points out that
suits for enhancement of rent of tenures failed for want of evidence as to customary or pergannah rates; and in many oases the Courts simply granted decrees declaring the liability of the tenure to enhancement without being able to grant consequential relief.
4. This would not happen if 'fair and equitable rate' with reference to assets which is the only ground of enhancement in the present case, was a ready solution. So the learned author points out that 'it was therefore thought necessary to lay down definite rules in the Bengal Tenancy Act.' But it is noteworthy that Section 7, Ben. Ten. Act, makes 'customary rate' (subject to contract) the first condition and 'fair and equitable rate' the second condition 'only where no such customary rate exists.' I must therefore with great respect differ from the view of law taken by our learned brother M. C. Ghose J. in his judgment dated 22nd August 1935, in S. A. Nos. 2133 and 2134 of 1933, arising out of cognate matters. I think that in a matter governed by Act 10 of 1859 it is wrong to base an assessment on the analogy of the Bengal Tenancy Act of 1885, however recent the case may be. Moreover in the present case on the analogy of Section 7, Ben. Ten. Act, the decision of the District Judge is open to objection. The notice and also the plaint cite customary rate as a ground but the plain-tiffs did not choose to give any evidence on the point and there is no finding that no such customary rate exists. Therefore the plaintiffs are not entitled to a 'fair and equitable rate' on the basis of assets which has been made the sole ground of enhancement. The decision is further defective in that the aforesaid ground is not stated as one of the grounds of enhancement in the notice which was served on the defendants. In the plaint the grounds are stated to be four in number and these are all traversed in the written statement. These four grounds are:
(1) That the price of foodstuffs has increased, (2) that the production powers of the soils had increased, (3) that the existing rents were below the rates of rent prevailing for similar lands in the vicinity and (4) that the rents paid were inadequate having regard to the income derived by the defendants from the jotes in suit.
5. The notice under Section 13 of Act 10 states as follows:
At present the price of crops having increased and the productive powers of the soil having increased and the rate of your rent being very small in comparison with the income of the said jote according to the rate of rent of similar lands in the neighbourhood, I am entitled to claim enhancement of rent from you.
6. What is stated as a fourth ground in the plaint is really one of the two conditions of the third ground in the notice. The other condition which is the third in the plaint has not been proved. On this reasoning also plaintiffs will not be entitled to a decree for enhancement. The authorities already cited show that the tenant is entitled to notice showing all the valid grounds of enhancement. Mr. Gupta for the] appellant has pointed out that on the vital question of customary rate the notice does not specify that tenure and not raiyati holding is the basis of calculation. The first two grounds are not grounds applicable to a tenure at all: Mohima Chunder Dey v. Gooroo Doss Sein (1867) 7 WR 285, Kalee Nath Choudhury v. Humee Bibee (1869) 12 WR 506 and Gobind Coomar Choudhury v. Haro Chunder Nag (1874) 21 WR 442. It is contended that no specific objection was raised in the written statement, but defect of notice was pleaded in para. 6 of the written statement and the point was raised before the District Judge. I think appellants are entitled to succeed on this point also. The result is that Second Appeals Nos. 1362 and 1363 of 1936 are allowed. The decrees for enhanced rates of rent are set aside. The suits will be decreed at the admitted rates. The tenants will get their costs in all the Courts. Let self-contained decrees be prepared in these appeals.
7. I now take up the landlord's Second Appeal No. 1094 of 1936. The same points arise in this appeal and in view of the decision on those points in favour of the tenant defendants, they are entitled to the same order as in the other two appeals. But there is a special point which has been decided by the learned Judge in their favour and that is that the whole suit is liable to be dismissed, because the lands are not agricultural and therefore Act 10 of 1859 has no application. The first Court took a different view, but on the matter being raised before the District Judge he had additional evidence taken and he has come to the finding that in Jote Mohan Bhog, barring a strip of 3 acres of paddy land, which is disputed, the plaintiffs alleging that it appertains to Jote Mohan Bhog and the defendants alleging that it belonged to Ba Ranga Das Jote, the rest of Jote Mohan Bhog is used for residential purposes, the land being occupied by shops and houses. So the learned Judge has held that this Jote is not agricultural in character. In this view the learned Judge has held that the provisions of Act 10 of 1859 have no application. He has relied for authority on the cases in In Re: Bramamayi Bewa (1870) 14 WR 252, Ranee Doorga Soonduree Dossee v. Bibee Omdadoonissa (1872) 17 WR 151, Madan Mohan Biswas v. William Stalkart (1872) 17 WR 441 and Ranee Doorga Soonduree Dossee v. Bibee Omdadoonissa (1872) 18 WR 234. The view of Dwarka Nath Mitter J. in two of these cases was to the effect that Act 10 of 1859 applies so long as the rent is sought to be derived from the land and not from the building. That view was not accepted by the Senior Judges nor by the Court of Appeal, Dr. Basak for the land-lord appellants has contended that if the land was originally of an agricultural character it does not lose that character simply because buildings are subsequently erected. The question directly arose in Ranee Doorga Soonduree Dossee v. Bibee Omdadoonissa (1872) 17 WR 151 and Glover J. dealt with the point thus:
It is contended for the special appellant that the land was originally let as an ordinary ryoti tenure, and that the suit is for rent of the land and not for the rent of the houses. I do not know that this makes any difference, and no attempt has been made to distinguish between the two kinds of rent. I understand Act 10 of 1859 as referring to land in the state it is in when the suit is brought, and there have been many decisions of this Court to the effect that the provisions of the Act can only apply to land which is at the time used for agricultural or horticultural purposes; and if land originally leased out as an ordinary agricultural tenure becomes afterwards covered with buildings in consequence of a town or bazar growing up round about it, I apprehend that, under the rulings of this Court it loses its agricultural character, and cannot form the subject of an enhancement suit under the rent law....It seems to me therefore that we ought in this case to follow the long current of decisions which hold that the rent of land used for building purposes cannot be enhanced by a suit under Act 10 of 1859.
8. This view was accepted by the Court of Appeal in Ranee Doorga Soonduree Dossee v. Bibee Omdadoonissa (1872) 18 WR 234. The later cases, Promoda Nath Roy v. Asiruddin Mondal (1911) 15 CWN 896 and Harendra Kumar Roy v. Hara Kishore Pal (1922) 9 AIR Cal 201, to which Dr. Basak referred, were cases under the Bengal Tenancy Act. There is this further difference, that in the present case there is no finding that the nature of the original tenancy was agricultural. More-over, the question in the present case is whether the Revenue Court had jurisdiction to try the suit when at the time of the suit the land was being actually used for a non-agricultural purpose. As I have said already Jote Mohan Bhog has not been found to have been originally agricultural, nor was it agricultural at the time of the suit. Therefore the learned Judge was right in holding that the Revenue Court had no jurisdiction to try the suit as under Act 10 of 1859. The suit was therefore rightly dismissed. The result is that Appeal No. 1094 of 1936 fails and is dismissed with costs.
9. I agree.