1. This is an appeal on behalf of the defendants in an action for rent-The plaintiffs-respondents claimed rent in respect of an area of 10 kanis 19 gundas and 18 tils for which, they alleged in their plaint, the defendants were liable to pay (at the rate of Its. 10-8 per kani) an annual rent of Rs. 115-4 and cesses. The defendants resisted the claim, substantially on the grounds, namely, first that they were liable to pay rent, not at the rate claimed, but at the rate of Rs. 99-12 annas per year under a registered kabuliat executed on the 4th June 1894, and secondly, that they had paid rent up to the year 1312 at the rate of Rs. 99-12.
2. In the Court of first instance the plaintiffs appear to have attempted to prove that the lands in respect of which rent was claimed were comprised in four tenancies and in order to establish this they called upon the defendants to produce their rent-receipts which showed that the rent of Rs. 115-4 had been paid in different sums, in respect of four distinct areas the aggregate whereof amounted to 10 k. 19 g. 10 tils. The defendants thereupon objected that the suit was not maintainable, as the plaintiff ought to have instituted different actions for rent of different tenancies. This objection prevailed, and the suit was dismissed.
3. Upon appeal by the plaintiffs, the learned District Judge held in new of the decision in Hridoy Nath Das Chowdhury v. Krishna Prasad Sircar 11 C.W.N. 497 : 34 C. 298 : 6 C.L.J 153 that they were entitled to maintain a single suit for recovery of rent of different tenancies held by the same tenants. On the merits he held that rent was payable at the rate alleged by the plaintiffs, and, accordingly, made a decree in favour of the plaintiffs allowing the defendants, credit for rent paid in respect of the year 1311 and part of 1312.
4. This decision has now been assailed on behalf of the defendants on the grounds, namely, first, that if the suit is treated as one for rent in respect of four different tenancies, it ought to be dismissed; and secondly, that the defendants are not liable in view of the provisions of Section 29 of the Bengal Tenancy Act to pay rent at a higher rate than what is mentioned in the kabuliat of 1894, notwithstanding that, as found by the Courts below, they have paid rent at the higher rate claimed by the plaintiffs for a period of three years.
5. So far as the first contention is concerned it is clearly opposed to the decision of this Court in Hridoy Nath Das Chowdhury v. Krishna Prasad Sircar 11 C.W.N. 497 : 34 C. 298 : 6 C.L.J 153; Baikunta Nath Roy v. Thakur Debendro Nath Sahi 11 C.W.N. 676; Navda Lal Mukherji v. Sadhu Charan Khan 7 C.L.J. 96 and Bipra Das v. Rajaram 13 C.W.N. 650 : 3 Ind. Cas. 306. These cases lay down that when there are several tenures held by the same tenant, the landlord may institute one suit for rent for all the tenures; but if he does so, he cannot put the tenancies to sale in execution of the decree so as to enable the purchaser to avoid encumbrances. If, therefore, the present suit be treated as one in respect of four different tenancies, it is not open to objection on the ground urged by the defendants. The first point taken by the appellants cannot, therefore, be supported.
6. So far as the second ground is concerned it must be conceded that the question was not raised in either of the Courts below in the precise form in which it has been presented to this Count. It appears upon the facts found by the Court of first instance that although the defendants executed a kabuliat in favour of the plaintiffs on the 9th May 1889 for a term of three years from 1296 to 1299, yet they had been in possession of the lands comprised in the tenancy from a very long period and that, therefore, they were occupancy raiyats. But we may observe that the Munsiff fell into an error when he relied upon the presumption mentioned in Section 20 Sub-section (7) of the Bengal Tenancy Act in support of his finding that the defendants were occupancy raiyats. That section applies only to proceedings under the Act; and it has been pointed out by their Lordships of the Judicial Committee in the case of Pramada Nath Roy v. Ramani Kanta Boy 35 C. 331 : 12 C.W.N. 249 : 7 C.L.J. 139 : 3 M.L.T. 151 : 10 Bom. L.R. 66 : 18 M.L.J. 43 : 35 I. A. 73 that a suit for rent is not a proceeding under the Bengal Tenancy Act. It is clear, however, from the facts set out in the judgment of the Munsiff that the defendants are occupancy raiyats. We have, therefore, the fact that the defendants are occupancy-raiyats, that the rent payable by them under the kabuliat executed on the 4th June 1894 was Rs. 99-12 a year and the rent which they have paid during the three years antecedent to the suit is Rs. 115-4 annually. Upon these facts, the question obviously arises, whether the rent has not been enhanced in contravention of the provisions of Section 29. The Court of first instance relied upon the circumstance that the rent had been paid for three years in support of the conclusion that the defendants are liable to pay rent at that rate, evidently under the first proviso to Section 29 of the Bengal Tenancy Act. As was pointed out, however, by a Full Bench of this Court, in the case of Bipin Behari Mandal v. Krishnadhan Ghose 32 C. 395 : 9 C.W.N. 265 (F.B.) : 1 C.L.J. 10 proviso (1) to Section 29 controls merely Clause (a) and not Clause (6) of the section. If, therefore, as a matter of fact the rent has been enhanced so as to exceed by more than two annas in the rupee the rent previously paid, the mere fact that rent has been paid at the enhanced rate for more than three years is no answer to the defence that the rent ought not to have been so enhanced. The question whether rent has been enhanced in contravention of Section 29(6) must consequently be determined. Here, however, it has been argued on behalf of the respondent that Section 29 has no application because the original tenancy to which the kabuliat of 1894 relates has subsequently ceased to exist and has been replaced by four new tenancies, to none of which the provisions of Section 29 are applicable. This is a question which has not been investigated by either of the Courts below. Our attention has been invited to the rent-receipts granted to the defendants and produced by them which indicate that for sometime past rent has been paid by them in different sums for distinct areas. Stress has also been laid' upon the circumstance that the total quantity of land mentioned in these rent-receipts is slightly different from the quantity of land mentioned in the kabuliat of 1894. This, however, is obviously not of much importance because, as has been pointed out by the learned Vakil for the appellants, the boundaries stated in the plaint are identical with the boundaries set out in the kabuliat. There can be no question, therefore, that the lands covered by the kabuliat are identical with the lands in respect of which the rent of Rs. 115-4 is claimed. But the point to be investigated is, whether Section 29 is applicable and if it is applicable whether rent has been enhanced in contravention of Section 29 Clause With regard to the first of these questions we may point out that the case of the respondents is that for the benefit of the tenants the lands-have been sub-divided and four new tenancies constituted in supersession of the original tenancy. We are not prepared to lay it down as an inflexible rule of law of universal application that whenever the lands of a tenancy have been sub-divided, there is a creation of new tenancies, nor can we affirm the converse of this proposition, for it cannot be said that although the lands-have been sub-divided, new tenancies have not been created. Reference may, in this connection, be made to the cases of Udoy Chandra v. Nripendra Narayan (1909) 1 Ind. Cas. 4 : 13 C.W.N. 410 : 36 C. 287 and Madhumola v. Alfazaddi 2 Ind. Cas. 415 : 13 C.W.N. 962 : 10 C.L.J. 45 in the former of which it was held that the new arrangement was destructive of the original obligation, and in the latter, that the original rights and liabilities, except in so far as they were expressly modified continued unaffected. What the effect of the division is, must depend upon the intention of the-parties. If the intention was that the incidents of the old tenancy should completely disappear and that the tenant should take the lands and continue to hold them under the new terms, for his benefit it is quite conceivable that the view may be defended that new tenancies have been created in supersession of the original tenancy. This is a question which mast be investigated by the learned District Judge. If he finds that the lands comprised in the suit still constitute one tenancy under the plaintiffs as alleged by them in their plaint, it is obvious that rent has been enhanced by more than two annas in the rupee because an enhancement of two annas in the rupee upon Its. 99-12 will bring the rental up to Rs. 112-3-6.
7. We, therefore, allow this appeal, set aside the decree of the District Judge and send back the case to him for re-bearing. He will be at liberty to take additional evidence which the parties may choose to adduce. As the question which has been raised before this Court was not taken specifically in the ground of appeal and does not appear to have been urged in either of the Courts below the appellant must pay the respondents the costs of this appeal.