1. These 21 appeals arise out of as many suits for recovery of arrears of rent. Plaintiffs' case briefly stated is as follows : Plaintiffs are the proprietors of 4 mouzahs in Touzi No. 98 appertaining to Pergana Salimabad. These 4 Mouzahs constitute Bandabasti Taluk Bisweswar Ray Chaudhury. Under the said Taluk there are tenancies of different grades held by the defendants in these suits. By a Robakari of the Commissioner of Sunderbands dated 1st July 1850, the rates of rent per standard bigha of 80 cubits payable by the tenants of different grades in respect of all the tenancies under this taluk are fixed. During the last settlement survey the lands of the tenancies in all the suits except suits Nos. 46 and .51 have been found on measurement by the same standard to be in excess of the area which were assessed at the rates fixed in the year 1850. Plaintiffs therefore are entitled to get additional rent for the unassessed lands of their tenancies according to the rates mentioned in the Robakari. In Suit No. 62 rent for the years 1335 to 1337 B.S. has been claimed. In the other suits the claim is for the yoars 1334 to 1337 B.S. Plaintiffs also claim cesses at a certain rate for 1334 and 1335 B.S. and at a different rate for the subsequent period. In Suit No. 64 plaintiffs prayed for enhancement under Section 30 (b), Bengal Tenancy Act. The defences common to all the suits are:
2. (1) That Section 109, Bengal Tenancy Act, is a bar to the plaintiffs' claim for additional rent. (2) That the rent for each of the tenancies in suit is a consolidated rent fixed for the entire land of each of these tenancies. (3) That the entire amount of rent for the period in suit has been paid. (4) That the plaintiffs are not entitled to claim cesses at the rate mentioned in their plaints.
3. The learned trial Judge decreed the suits in part on the following findings:
(a) That Section 109, Bengal Tenancy Act, as it stood before the Bengal Tenancy Amending Act of 1928, is a bar to the plaintiffs' claim for additional rent in Suits Nos. 14, 47, 49, 50, 56, 59, 62 and 63.
(b) That the plaintiffs are entitled to get additional rent for increase in areas in Suits Nos. 13, 52, 53, 54, 55, 57, 58 and 61 at 8 annas per bigha of excess land.
(c) That the plaintiffs are entitled to get cesses at the rate of 6 pies per rupee for the period previous to the last quarter of 1336 B.S. and at the rate mentioned in the Valuation Roll, Ex. 5, for the subsequent period.
(d) That the plaintiffs are entitled to get enhancement of rent at the rate of 8 annas per rupee under Section 30 (b), Bengal Tenancy Act, in Suit No. 64.
(e) That the pleas of payment taken by the defendants have been substantiated in part.
4. The plaintiffs and the defendants both appealed to the lower appellate Court. The learned District Judge has dismissed all the appeals excepting the appeal by plaintiffs in Suit No. 64 which was allowed by him. Hence these second appeals by the defendants; plaintiffs have also filed cross-objections. The first point urged by the learned Advocate for the tenants is that the facts found by the lower appellate Court are not sufficient to establish the liability of the tenants to pay additional rent for the excess lands of their tenancies. By Section 52, Ben. Ten. Act, a tenant is liable to pay additional rent for all lands proved by measurement to be in excess of area for which the rent had been previously paid by him. Now the words 'area for which rent has been previously paid' mean the area with reference to which rent was assessed or adjusted. [See the case of Gocool Chunder Law v. Jamal Biswas 1928 Cal 553]. In order to prove the area for which rent was being previously paid it is not necessary for the plaintiff to prove the area of the tenancy at its inception. In order to determine whether the landlord is entitled to additional rent the question which has to be solved is whe ther the tenant is in occupation of the, land for which no rent has been assessed and for which he is bound to pay rent. If since the date of the last assessment he has encroached on adjoining waste of the landlord he is liable for rent for the land encroached. If he has not encroached upon the adjoining waste and is in occupation of the same area which he possessed when the rent was last assessed he may be liable to pay the additional rent if it is proved that rent was not assessed at a consolidated sum upon the entire area found in his possession but upon an assumed area or upon an area determined by measurement as the area in his possession. [See the case of Durga Priya Chaudhury v. Nazra Gain 1921. Cal 345]. From Ex. 1, dated 1st July 1850, and Ex. 6, dated 24th July 1850, the two Robakaris of the Commissioner of the Sunderbans, the following facts appear:
5. (1) That the Bandobasti Taluk in question was a part of the Sunderbans in Pergana Salimabad in the District of Bakargunj. (2) That the Mouzahs included in that Taluk were resumed. (3) That in 1850 the Mouzahs were permanently settled with certain Zemindar of Pergana Salimabad. (4) That at the time of this permanent settlement the Board of Revenue fixed 8 annas as revenue payable by the permanent settlement holders to Government for each standard bigha of 80 cubits. (5) That in the course of this settlement on the application of certain Sikmi tenureholders the rates of rants payable by the subordinate tenants of different grades to their immediate superior landlords per standard bigha of 80 cubits were settled by the Sunderbans Commissioner and were accepted by all the subordinate tenants. (6) That these rates give the Sikmi tenure-holders, that is the middlemen, a certain amount as profit per bigha of 80 cubits. (7) That a Jamabandi was directed to be prepared in accordance with the rates settled and accepted by the subordinate tenants.
6. The Jamabandi has not been produced. It appears however that at the time of settling the mehal permanently the revenue for the mehal was settled at 8 annas per bigha. Ex. 6 shows the total amount of revenue payable to Government for the mehal in question. There cannot be any doubt therefore that the area of the mehal in question was ascertained by measurement before the total amount of revenue payable for the mehal was fixed. The dakhilas granted to the tenants after 1850 show the areas of the different tenancies as so many bighas, cottas and chataks, and the amounts of rent payable for those areas were worked out by applying the rates settled and accepted by the tenants in 1850; there is no evidence in these cases to show that in 1850 the tenants were in possession of these excess lands which have now been found to be in their possession. We are therefore of opinion that the lands in the possession of the tenants in 1850 were measured in 1850, and areas for which the rent was assessed in 1850 are the areas shown in the dakhilas and that the excess areas which have now been found to be in the possession of the tenants were not assessed in 1850 and are therefore unassessed lands. The Courts below were therefore right in assessing these excess lands. The second point urged on behalf of the tenant is that in determining the present areas of each of these tenancies at least 5 p. c., should be deducted for closeness of survey from the area found by measurement in the course of the District Settlement operation. The learned Advocate for the landlord does not seriously dispute this point. This contention is therefore accepted. The third point urged by the learned Advocate for the appellants is that the Courts below were wrong in not enquiring into the legality and correctness of the appropriation of payment on account of rent and cesses by the landlords in respect of all the 42 jamas held by the defendants under the plaintiffs. This contention has no substance because the tenants did not produce any materials which could enable the Courts below to make such investigation.
7. The last point taken by the learned, advocate for the appellants is that in suit No. 64 the Courts below were wrong in enhancing the rent under Section 30 (b), Ben. Ten. Act. This contention is well founded and the position is not seriously contested by Mr. Gupta appearing on behalf of the respondents. Plaintiffs' claim for enhancement of rent under Section 30 (b), Ben. Ten. Act, in this suit is therefore disallowed. As regards the cross-objections the first point urged by the learned Advocate for the plaintiffs is that the Courts below were wrong in dismissing the plaintiffs' claim for additional rent in suits Nos. 14, 47, 49, 50, 56, 59, 62 and 63. It appears that the plaintiffs instituted proceedings under Section 105, Ben. Ten. Act, before the Revenue Officer for additional rent for unassessed lands of the tenancies which are the subjectmatter of these suits. The claims for additional rent however were not pressed before him with the result that Section 109, Ben. Ten. Act, precluded the plaintiffs from suing the tenants in the civil Court for increasing the rent of these tenancies. In view of the decision in Gosta Behary Pramanik v. Nawab Bahadur of Murshidabad 1932 Cal 207 and our decision in Second Appeal No. 563 of Suprabat Chandra v. Bhupati Bhusan 1936 Cal 307 we overrule this contention.
8. The next point urged on behalf of the plaintiffs is that the Courts below are wrong in holding that the plaintiffs are not entitled to get cesses at the rate of more than six pies per rupee before the first quarter of 1336 B.S. It appears however that the plaintiffs did not produce the Valuation Roll before the trial Judge. On appeal they asked the learned District Judge to take a certified copy of the Valuation Roll as additional evidence. The learned Judge refused the prayer of the plaintiffs. The same prayer has been repeated before us. . The learned Judge did not accept the explanation given by the plaintiffs for not filing the Valuation Roll in the trial Court. We see no reason to differ from the learned Judge in this matter. There are no materials therefore on which we are in a position to say that the rate of cesses which is payable by the tenants is higher than what has been decreed by the Courts below. The last point urged by the learned Advocate for the plaintiffs concerns the plea of payment. The onus of substantiating this plea is upon the tenants. It is true that they made certain payments from time to time. But they did not declare the year or the years and the instalment to which they wanted the payments to be credited. The plaintiffs therefore were justified in crediting these payments to the account of the years previous to the period in suit under Section 55 (2), Ben. Ten. Act. There are no materials on the record to show that this appropriation is wrong. The plea of payment therefore in all these suits fails.
9. The result therefore is: Plaintiff's claim for enhancement of rent under Section 30 (b), Ben. Ten. Act, in Suit No. 64 and for additional rent for excess area in suits Nos. 14, 47, 49, 50, 56, 59, 62 and 63 is dismissed. Plaintiffs are entitled to get additional rent for each bigha of unassessed area that is 19/20th of the present area as stated in the plaint minus the area shown in the plaint as already assessed at the rate of 8 annas in the tenancies which are the subjectmatter of suits Nos. 13, 52, 53, 54, 55, 57, 58 and 61 and at the rate of one rupee one anna in the tenancy which is the subject matter of suit No. 64. The plea of payment in all the twenty-one suits is disallowed. The appeals and the crossobjections are therefore allowed in part. The decrees of the lower appellate Court are varied in the manner indicated above. Parties will bear their own costs in these appeals and the cross-objections. The prayer of the learned Advocates for the parties for a direction upon the trial Court to prepare decrees in accordance with our decision in these cases is allowed.