Nasim Ali, J.
1. The suit out of which this appeal arises was for recovery of arrears of rent and for enhancement of rent under Section 30 (b), Ben. Ten. Act. In the present appeal, however, I am concerned only with the question of enhancement. The holding is admittedly an occupancy holding. The claim for enhancement is also not hit by Section 37 of the Act. The learned Munsif rejected the plaintiffs' prayer for enhancement under Section 30 (b) on the ground that there had been a fall in the price of staple foods since the rent was adjusted by a decree under Section 52 of the Act in the year 1929. The lower appellate Court however has reversed that decision and has remanded the suit to the trial Court. Hence this appeal by the tenant. By Section 30 (b) the landlord of an occupancy holding held at a money rent, is entitled, subject to other provisions of the Act, to institute a suit to enhance the rent of the holding on the ground that there has been a rise in the average local prices of staple food crops during the currency of the present rent.
2. The learned Munsif took the date of the decree under Section 52 as the date from which the present rent was current. I am unable to agree with him in this view of the matter. The decree under Section 52 did not enhance the rent but simply altered it for excess area already in the use or occupation of the tenant. The Act makes a distinction between enhancement of rent and alteration of rent on alteration of area. The landlord cannot claim back rent in a proceeding for enhancement (Section 154 of the Act). Further his right to claim enhancement under Clauses (a) and (b), Section 30 are subject to the limitation laid down in Section 37. These limitations however do not apply to a claim for additional rent for an excess area inasmuch as rent is money payable by a tenant to his landlord on account of the use or occupation of the land held by the tenant. 'Present rent' in Section 30 (b), 'previous rent' in Section 32 (b) and 'existing rent' in Section 105, Clause (4) have been used in the Act in the same sense:
It is possible that the landlord for some reasons or other may not have realised the full rent. It is also possible that the landlord may not have realized any rent at all. In the latter case it is hardly reasonable to say that by existing rent is meant no rent: Kailash Sundari v. Midnapore Zamindary Co. 1929 Cal 47.
3. The right to recover additional rent for excess area is a recurring one. A landlord is entitled to exercise it whenever he finds it necessary to do so: Jatindra Mohan Tagore v. Chandra Nath (1902) 6 C W N 360. There is nothing to prevent the landlord from claiming back rent for any additional area in the use and occupation of the raiyat provided the claim is not barred by limitation: Jagannath Manjhi v. Jumman Ali Patwari (1902) 29 Cal 247. The words 'during the currency of the present rent' in Section 30 (b) must therefore mean
during the currency of the rent which the raiyat has been actually paying or was liable to pay for the use and occupation of the land held by him.
4. By the decree in the previous suit under Section 52 the landlord obtained a decree for rent for the back period for the excess lands in the occupation of the tenant at the rate mentioned in the kabuliat of the year 1901 on the basis of which he came to possess the holding. In the previous suit the rent was not enhanced but simply altered. The land-lord could have united the two causes of action in the previous suit and could have asked the Court under Section 30 (b) to enhance the rent altered under Section 52 see Sarada Charan v. Iswar Samti (1907) 11 C W N 1154. But he was not bound to do. In the present case; he is therefore entitled to ask the Court to enhance the rent altered under Section 52. The decree under Section 52 does not preclude him from doing so, and the date of the said decree cannot be taken as the date from which the present rent is current. Whether he will get any enhancement in view of the economic depression is entirely a different matter. Section 35 of the Act leaves the matter to the discretion of the Court. If the learned Munsif had not taken the date of the decree as the date from which the present rent was current, and had refused to decree enhancement by exercising his discretion under Section 35 on the ground that it would be unfair or inequitable in view of the fall in the price of staple foodcrops, the position might have been different. But he rejected the landlord's prayer for enhancement on an erroneous view of the effect of the decree under Section 52. I am not prepared to say therefore that the order of remand by the lower appellate Court is wrong. The appeal is accordingly dismissed with costs. Hearing fee one gold mohur.
5. I agree.