1. (S.A. No. 136) - In this case, since the filing of the appeal, one of the respondents joint tenants died. The suit was one for enhancement of rent. No substitution has been made and the appeal has been dismissed as against him by an order dated 17th February 1926. This appeal must also fail as against respondent 1 and will be dismissed with costs as it cannot proceed when all the tenants are not on the record.
2. S.A. Nos. 121-134 and 137.--These appeals arise out of suits instituted by the landlord for recovery of rent and for enhancement thereof under Section 30, Clause (b), Ben. Ten. Act. The trial Court enhanced the rent at the rate of 4 annas per rupee. On appeal preferred by the defendants, the learned District Judge has modified the decrees of the trial Court on the question of enhancement by allowing the plaintiff enhancement at the rate of one anna per rupee instead of at the rata of 4 annas per rupee.
3. Two grounds have been urged in sup-port of this appeal by the learned vakil who appears on behalf of the appellant. The first ground is to the effect that in view of the provisions of Section 32, Clause (b), Ben Ten. Act, the learned Judge was wrong in holding that the plaintiff was entitled to anything less than what was decreed by the Court of first instance. The second ground is that assuming that the learned Judge was right in holding that he had a discretion as to the amount by which the rent could be enhanced that discretion has been wrongly exercised.
4. With regard to the first of these contentions, it is true that the words used in Section 32, Ben. Ten. Act, on the face of them, appear to be of a mandatory character. But that section evidently has got to be read along with Section 35 which controls it. Section 35 says that notwithstanding anything contained in the foregoing sections-and Section 32 is one of such sections,-
the Court shall not in any case decree any enhancement which is under the circumstances of the case unfair or inequitable.
5. When the two sections are read together, it is clear that Section 32 only lays down the procedure by which the enhancement is to be calculated and Section 35 gives a discretion in the Court as to the, extent to which the enhancement should be allowed.
6. As regards the second contention that has been put forward on behalf of the appellant, I am unable to say that the considerations upon which the learned District Judge has proceeded do not justify the reduction in the enhancement that he has made. He has referred to the fact that the cost of cultivation is now three or four times what it was twenty years ago he has also referred to the fact that even upon the calculation which the learned Munsif has made, the average price of. paddy had increased by 4 annas 3 pies and that the tenant was certainly entitled to a substantial portion out of it and he has also relied upon the fact that it was only so recently as 15 years before these suits that the landlord had succeeded in getting an enhancement. These circumstances in my opinion, are sufficient to justify the decree which the learned District Judge has passed and in this view of the matter I think that there is no substance in any of these appeals and that they should be dismissed with costs.
7. I agree.