1. The litigation which has now culminated in the present appeal has had an extremely chequered history but it will not be necessary for our present purpose to set out all the facts. Suffice it to say that the suit out of which this appeal has arisen was instituted for the purpose of settling a fair rent for certain lands which have accreted not only to the plaintiff's Zamindary, but also to the tenure of the defendants. The revenue authorities have fixed certain revenue upon it which the plaintiff is bound to pay and the plaintiff now asks that he also should be given an increase of rent from the defendants. But briefly his case is that he is entitled to it under the provisions of the Bengal Tenancy Act. The respondents resist the claim upon three main grounds. Their first contentionis that they are exempted by the terms of the Patta and Kabuliat which were executed when the holding was originally created as long ago as the year 1273. In the second place they contend that they are not liable under the law, and in the third place they contend that the matter has been concluded in their favour and that the question has now become res judicata. The learned Subordinate Judge who tried the suit decided the first point in favour of the plaintiff. This decision was reversed by the learned District Judge on appeal.
2. The translation of the Kabuliat has been placed before us and in our opinion the learned Subordinate Judge was right on this point. It is quite clear that a certain area of land was settled after measurement at a certain rental and there can be no question that the intention of the parties was that the rent for that land was not to be enhanced. Then in the second place there was a provision that in the event of any diluvion the defendants will not get any abatement of rent. On this point it seems desirable to stress the fact that the defendants were getting a quid proquo. They were maintaining in fact their right to any re-formation in situ and any further accretion which might take place in future. There is really nothing in this provision to entitle us to say that it implies something else of a totally different character. This really disposes of the provisions in the lease. It is nowhere said that the landlord is willing to surrender his right to additional rent for any land which may subsequently form by accretion. We are not prepared to imply that any such agreement was intended. It is obvious that in such an event the landlord had before him the danger, which has actually materialized, that in the event of any accretion his revenue might be greater than the rent which he was entitled to realize. For these reasons we are of opinion that there is nothing in the lease itself which would defeat the present claim of the plaintiff.
3. The second point is based upon the provisions of Regulation 11 of 1825, but has ultimately to be decided upon the burden of proof. The learned Subordinate Judge did not find, and in the absence of any evidence could not find, that the plaintiff was not entitled to any enhancement under the terms of that Regulation. In fact the position is that we simply do not know whether he was or was not. What the learned Judge did was to approach the case as though the Bengal Tenancy Act had never been passed and the suit was one for enhancement of rent under the terms of the Regulation. No doubt in a suit of that character it would be necessary for the plaintiff to show that there was an established usage under which the defendants were liable to pay additional rent for any accretion to their tenure.
4. The present suit however was one under the Bengal Tenancy Act, and there can be no question that under the provisions of that Act the plaintiff is entitled to enhancement. The answer made by the defendants is that the plaintiff's claim is defeated by Sub-section 4, Section 2. That subsection is in these terms: 'The repeal of any enactment by this Act. shall not revive any right, privilege, matter or thing not in force or existing at the commencement of this Act.' Put shortly the contention of the defendants is that at the time when the Bengal Tenancy Act was enacted the plaintiff's predecessor had no right to additional rent. Now we are clearly of opinion that if a defendant wants to meet a claim by a plea of this kind, the burden of establishing it clearly rests upon him. If the defendants wish to show that at the time of the passing of the Bengal Tenancy Act the plaintiff's predecessor had no right to an enhancement of rent, it is clearly for them to establish it. They made no attempt to do so and there was no evidence at all on which the question could be determined. As I have already indicated we are completely in the dark on the point, and in these circumstances it must be held that this Sub-section is of no avail to the respondents.
5. The third point of res judicata is based upon the judgment of Mr. Chotzner as he then was sitting in appeal in the District Court by which he dismissed a suit for enhancement brought by the plaintiff in the year 1910. There are several reasons why this plea cannot be substantiated. In the first place, the suit in 1910 was instituted in the Court of the Munsif and not in the Court of the Subordinate Judge. In the second place the claim of the plaintiff was quite different. He was then asserting that the disputed land was part of his permanently settled estate and on such a case it would be very difficult to say that he could claim any enhancement of rent in view of the terms of the lease. In the third place the present question, i.e. the right of the plaintiff to enhancement under Section 52, was deliberately left open. In the fourth place this matter has already been before this Court on a previous occasion. The suit was dismissed. On appeal by the plaintiff the learned District Judge upheld the order of dismissal on the ground that the suit was barred by limitation. On the point of res judicata he held in favour of the plaintiff. The plaintiff appealed to this Court. The appeal was heard by Suhrawardy, J., and Patterson, J., and they overruled the finding of the District Judge with regard to limitation. It was then open to the defendants to support the order of dismissal on the ground of res judicata. They did not do so with the result that this Court, instead of dismissing the suit remanded it to be heard on the merits. In view of that order it is now too late to say that the suit is barred by res judicata.
6. The result is that in our opinion the plaintiff is entitled to a decree. The present litigation has been going on for many years and we feel very strongly that it ought to be put an end to. It is therefore with the greatest reluctance that we should remand it again. In our opinion it is not necessary to do so. The plaintiff claimed rent at the rate of Rs. 627-2-0 basing his claim on what he alleged to be the prevailing rent. Before us that claim has not been pressed. It appears that when the revenue authorities, in the course of the dearah operation, assessed the revenue which the plaintiff is liable to pay; they also assessed the rent of the defendants at the rate of Rs. 550-3-0. The defendants attempted to recover that rent but failed as it was held by Walmsley and B.B. Ghose, JJ. that this assessment was not of a binding character. We are not now concerned with the question whether it is binding or not. We are only concerned with the question whether it is fair. We find it difficult to imagine what better materials there could be in fixing a fair rent than the opinion formed by an expert officer who was actually working on the spot. Mr. Chakrabarty has not said anything which would lead us to suppose that that rent is in any way unfair and we therefore propose, instead of remanding the case again, putting the parties to the expense of another hearing and possibly another appeal to this Court, to fix the rent at the rate of Rs. 550-3-0.
7. The result is that this appeal is allowed and the decrees of both the Courts below are set aside. The plaintiff will begivena decree settling Rs. 550-3-0 as rent and a decree to recover rent at that rate for a period of three years. In this connection we may note that Dr. Basak has abandoned the claim for the year 1329. The appellant will also get his costs in all the Courts.
8. I agree.