Banerjee and Rampini, JJ.
1. This appeal arises out of a suit for rent.
2. The plaintiff's allegation was that the rent was payable at a certain amount. The defence was that the amount was less; and the plaintiff in support of hip allegation, that the rent was what was claimed, sought to show that the rent was increased in 1288, and once again in 1295.
3. The first Court found for the defendants, and gave the plaintiff a decree at the admitted rate. Certain other objections were urged by the defendants, which it is not necessary to consider. On appeal by the plaintiff, the Lower Appellate Court has held that the alleged increase in the rent in 1288 was not proved, and that the increase in the rent said to have been effected in 1295 could not be given effect to, because it was net by a contract registered as required by Section 29 of the Bengal Tenancy Act.
4. In second appeal it is contended that the Lower Appellate Court was wrong in holding that the increase in the rent that is said to have been effected in 1295 came within the scope of Section 29 of the Bengal Tenancy Act. It is argued that Section 29 applies only to an increase in the rate of rent, and not to an increase in the amount of rent by reason of increase of the area, and that the increase of 1295 was an increase of this latter description, as would appear from the judgment of the first Court.
5. We are of opinion that this contention is correct. Section 29 of the Bengal Tenancy Act applies only to cases of increase in the rate of rent, which is ordinarily designated 'enhancement of rent'; whereas increase in the rent by reason of increase in area is not called 'enhancement of rent' but is styled 'alteration of rent' in the Act; and there is reason to think that the increase in the rent in 1295 was due, partly at any rate, to increase in the area. Whether that is so or not it would be for the Lower Appellate Court to determine, it being a question of fact which we cannot enter into in second appeal.
6. The decree of the Lower Appellate Court is accordingly set aside, and the case sent back to that Court in order that it may dispose of the appeal after determining the question whether there was any increase in the rent in 1295 by reason of increase in the area; and if there was any such increase what was the extent thereof. The costs will abide the final result.
7. It is admitted that this judgment will govern second appeals Nos. 1238 and 1239 of 1897.