1. This is an appeal on behalf of the landlord in a proceeding under Section 105 of the Bengal Tenancy Act for settlement of fair and equitable rent in respect of the land held by the tenants respondents. The claim was allowed in part by the Settlement Officer, But upon appeal that decision has been reversed by the Special Judge. The landlord assails the decree of the Special Judge substantially on two grounds: namely, first, that in so far as he claims enhancement of rent on the ground mentioned in Section 30, Clause (6), of the Bengal Tenancy Act, namely, rise in the average local price of staple food crops during the currency of the existing rent, he should not have been driven to a separate suit; and secondly, that additional rent for excess lands should have been allowed under Section 52 of the Bengal Tenancy Act, notwithstanding the finding that the previous measurement made by the landlord in 1900 was not trustworthy. In our opinion, both these contentions must prevail.
2. In respect of the first contention, it is difficult to see upon what ground the landlord has been referred to a fresh litigation. Section 105 entitles the landlord to apply for assessment of a fair and equitable rent in respect of the lands held by the tenants. Sub-section 4 provides that in settling rents under the section the Revenue Officer shall presume, until the contrary is proved, that the existing rent is fair and equitable and shall have regard to the rules laid down in the Act for the guidance of the Civil Court in increasing or reducing rents, as the case may be. One of the rules laid down in the Bengal Tenancy Act for enhancement of rent is to be found in Section 31B read with Section 30, Clause (b). Consequently this matter must be determined by the Special Judge.
3. In so far as the second ground is concerned, no doubt under Section 52, it is not disputed that the landlord has to establish that there is excess land in respect of which he is entitled to claim additional rent. The landlord must prove that the tenant is, at the time of the claim, in occupation of more land than that for which he has hitherto paid rent. He has, therefore, to establish the quantity of land in the occupation of the tenant at the time of the claim and the quantity in his possession previously. This presumes) no doubt, that the present as well as the previous measurement is accurate and reliable. It is conceivable, however, as is illustrated by the present case, that the landlord may be entitled to additional rent, even though he is unable to establish that the previous measurement is accurate and reliable. In the case before us, the measurement of 1900 was made by what is called the Kamarband system. The Settlement Officer has explained what is meant by the system of measurement. A russi is used for measurement and is 20 cottahs in length. Each cottah is equal to 11/2 cubits but one cottah at each end of the russi is twisted round a man's waist and measurement is made only by 18 cottahs, which actually makes 1 bigha equal to 16 cottahs 4 dhurs, This obviously is beneficial to the landlord. He measures with a russi which is ostensibly 20 cubits in length; but the one actually employed is only 18 cottahs in length. Under this system it would not be difficult to convert the area as determined into the area according to the standard method of measurement. But the Special Judge has pointed out that an inaccuracy is introduced by reason of the practice followed in carrying out the measurement, which is thus described by him: In writing down the measurements the number of the lugga reached is written; that is what is 2 luggas on the ground is written 3, what is 3 is written 4 and so on. Lengths and breadths measured on this system are multiplied together in calculating areas and the result obtained reduced to bighas and cottas by the ordinary calculation, namely, 20 dhurs is taken as equivalent to 1 cottah and 20 cottahs as equivalent to 1 bigha. It is obvious that this practice introduces an indeterminate error. The extent of the error depends not upon the area of the plot mentioned but upon the lengths of its sides. Let us take a concrete instance. If a field really measured 3 by 4, according to this system, it is taken to be 4 by 5; that is, what is 12 becomes, according to this system, 20. On the other hand, a field which is 19 by 20, becomes 20 by 21; while another field 38 by 10, that is, of equal area, becomes 39 by 11; in other words 380 becomes 420, in the one case, but 429 in the other. It is thus obvious that the extent of the error is not proportionate to the size of the field, and that even in the case of several fields of equal area, the extent of the error may widely differ; for instance, the error in the case of a field 60 by 7 is very different from the error in the case of a field 21 by 20, although the areas of the two fields are identical. Consequently if merely the area of the field as determined according to this inaccurate method is known, we have not sufficient data to determine the correct area. The error, it will be observed, is for the benefit of the landlord. Prima facie, therefore, the landlord is not entitled to rely upon this measurement to show that the tenant is in occupation of more lands than that for which he has been paying rent. But the learned Vakil for the landlord appellant has pointed out that he is entitled to excess rent in respect of the difference between the area as indicated in the measurement of 1900 and the area as accurately determined on the present measurement. This is obviously sound. The error in 1900, as we have already explained, has been for the benefit of the landlord. Consequently, if we take the difference between the two figures just mentioned, the advantage will be on the side of the tenant, as he will be assessed with additional rent, on the principle mentioned in Sub-section 5 of Section 52, only in respect of the excess quantity so determined. Let us take a concrete illustration again: the tenant who really held 12 bighas (4 by 3) in 1900, was shown in the measurement papers as in possession of 20 bighas (5 by 4); if he is now in occupation of 25 bighas, he will be liable for additional rent in respect of 5 bighas; he cannot very well altogether escape payment of additional rent, merely because the measurement of 1900 was inaccurate in favour of the landlord. Consequently the claim under Section 52 of the Bengal Tenancy Act ought not to have been entirely negatived.
4. The result is that this appeal is allowed, the decree of the Special Judge set aside and the case remanded to him in order that these two points may be reconsidered. There will be no order as to the costs of this appeal.
5. It is conceded that this judgment will govern the other appeal, Second Appeal No. 2837 of 1909, in which a similar order will be drawn up.