1. This appeal is by the tenant defendants and it arises out of a proceeding under Section 105 of the Bengal Tenancy Act. The landlord sought to enhance rent on three grounds, increase of area, rise in prices of food crops and increase in the productive power of the soil by reason of fluvial action. The Courts have given enhancement of rent on the first two grounds. The learned Special Judge was not in a position to find what was the area of the holding at the inception of the tenancy. But he has found that in the year 1309 it was less than what it has been found to be in the recent survey and settlement proceedings but the rent was the same then as it is now. On that finding he has upheld the decision of the Settlement Officer.
2. The ground taken in appeal here is that unless the Court is in a position to find what the area was at the inception of the tenancy, it cannot under Section 52 of the Bengal Tenancy Act give any enhancement on the ground of increase in area of the holding. That contention appears on the authorities to be in a sense sound It is not necessary to refer to all the cases on the point. It was decided in the case of Rajendra Lal Goswami v. Chunder Bhusan Goswami 6 C.W.N. 318 that the words in Section 52, 'the area for which rent has been previously paid,' must be understood to mean area with reference to which the rent previously paid had been assessed or adjusted. That view has been subsequently accepted as correct in various decisions of this Court and I am not aware of any case in which that view has been dissented from. It was, therefore, necessary for the landlord in the case to prove that there had been some increase in the area as compared with the area of the tenancy at its inception. The learned Judge has remarked that it was not possible to do so by direct evidence. All that he has found is that in one year some time between the inception of the tenancy and the present date the tenant was in occupation of land less than that now in his possession. It does not follow from that that previous to that year he was not in possession of more land than he held in that year. It cannot be inferred from the single instance of one year-nor did the learned Judge attempt to do so-that the area then in the tenant's occupation was the same as the area on which rent had originally been assessed.
3. That being so, the decree must be modified to this extent that the amount given as enhancement on account of increase in area must be deducted from the amount to which the landlord has been held entitled.
4. The respondents do not appear. So the appellants will get no costs of this hearing. As regards the costs of the two lower Courts the parties will get costs in proportion to their success.