1. This is an appeal by the plaintiffs the Port Canning and Land Improvement Company Ltd. in a suit instituted by them against the defendants for arrears of rent for the years 1319 to 1330 B.S. It appears that the plaintiff company served upon the defendants who were non-occupancy raiyats an agreement demanding a certain enhanced rent, The defendants did not agree to the enhancement. The plaintiffs consequently had to institute against the defendants proceedings under Section 46, Ben. Ten. Act, so far back as 28th March 1913. The Court of first instance which tried the suit dismissed the plaintiff's claim. On appeal, the lower appellate Court affirmed the decision of the Court of first instance. The matter was then carried in second appeal to the High Court and the High Court remanded the suit on 24th July 1919 for determining what the fair and equitable rent in respect of the holding would be. On 28th September 1921, the Munsiff determined the fair and equitable rent in respect of the lands in question. Against this decision, the tenants preferred an appeal to the District Judge. During the pendency of the appeal, on 5th November 1921, the tenants agreed to pay the enhanced rent as settled by the Munsiff subject to the result of the appeal. On 6th July 1923, the appeal of the tenants was dismissed. The present suit was instituted on 14th April 1924. The Court of first instance has allowed to the plaintiffs a decree for arrears of rent at the rate of Rs. 104-3-6 for the years 1327 and 1328 and at an enhanced rate of Rs. 159-6-3, for the years 1329 and 1330 B.S with cesses at six pies in the rupee and interest at 121/2 per cent per annum. Against this decision, an appeal was carried to the District Judge and the learned District Judge has affirmed the decision of the Court of first instance. Against this decree of affirmance by the lower appellate Court, a second appeal has been taken to this Court, as already stated, by the plaintiffs.
2. The main contention of the appellants before us has been that the Courts below have clearly erred in dismissing tne suit of the plaintiff company for the years 1323 to 1326 and in allowing them arrears of rent for the years 1327 and 1328 at the old rate. It is said that the lower Courts should have granted a decree to the plaintiffs at the enhanced rate for the years 1323 up to 1328. The agreement of the appellants is based on the contention that, as the proceelings under Section 46, Ban. Ten. Act, ascertaining the fair and equitable rent were proceedings in the nature of a suit for enhancement of rent, the provisions of Section 154 of the said Act were attracted to the case and that consequently the plaintiff company were entitled to get rent at the enhanced rate from, at any rate, the year 1323 B.S. This argument assumes that the enhancement agreed to by the tenants respondents in this case was really an enhancement made by the Court. It becomes necessary, therefore, to examine some of the provisions of the Act for the purpose of determining whether the enhancement in the present case which was agreed to on 5th November 1921 was an enhancement made by a decree of the Court so as to attract the provisions of Section 154. Section 43 says:
The rent of a non-occupancy raiyat shall not be enhanced except by registered agreement or by agreement under Section 46.
3. It appears in this case that, after the Munsiff had determined the fair rent on 28th September 1921, the tenants agreed to pay the rent so determined within the meaning of Section 46 Clause (7). Section 46 Clause (7) states:
If the raiyat agrees to pay the rent so determined, he shall be entitled to remain in occupation of his holding at that rent for a term of five years from the date of the agreement.
4. It is not necessary to quote the remaining part of this clause. The contention of the appellants that this enhancement was really made by the decree determining the fair and equitable rent under Section 46 loses its force when the scheme of the whole section is considered. Section 46 provides that the Court is to determine the fair and equitable rent of a non-occupancy raiyat and then, after the determination of such rent, if the raiyat does not execute the agreement and file it under Sub-section (3) he shall be deemed for the purposes of section to have refused to execute it. Sub-section (7) says that if the raiyat agrees to pay the rent so determined, he shall be entitled to remain in occupation of the holding for five years from the date of the agreement. This shows that the agreement is to take effect from the date when it is entered into. It has been strenuously argued before us by the learned advocate for the appellants that this is not to be treated as a case of an agreement between the parties, that is, between the landlords and the tenants but it is to be treated as an election of an alternative order made by the Court which determined the fair and equitable rent. This is a contention to which I cannot agree. Section 43 in express terms states that, the rent of a non-occupancy raiyat can be enhanced by agreement under Section 46 ; and that is the agreement which is referred to in Section 46 (7). The liability of the tenant to pay enhanced rent is not dependent on the decree which merely stops short after determining what the, fair and equitable rent is. The liability really attaches from the time when the tenant agrees to pay the rent so determined. This view receives support from the decision of the Patna High Court in the case of Wajihunnessa Begum v. Babu Lal A.I.R. 1926 Pat. 42 and I shall refer to some of the observations made by Sir Dawson-Miller, C.J., in that case which are pertinent to the present controversy. It is conceded that the case referred to is directly in point. The learned Chief Justice at p. 53 of the report expresses himself thus on the point with which we are now dealing:
But it seams clear that the enhanced rent is payable at the latest from the date when the raiyat agrees to pay the rent determined by the Court. Sub-section (7) does not in terms say from what date the enhanced rent should be payable. It merely states that the raiyat shall be entitled to remain in occupation of his holding at the enhanced rent for a term of five years from the date of the agreement. But, as his liability to pay the enhanced rent, only arises by reason of his agreement, it seems to me impossible to hold that ha was under any liability to pay rent at the enhanced rate before that date. The fact that the defendants did not, in fact agree to pay the enhanced rent until a much later date than, that on which they might have been put to their election appears to have been due to the failure of the plaintiff to insist upon her rights. She could have compelled the defendants to pay the new rent or submit to ejectment as soon as the Munsiff's decision was given unless the Court ordered a stay which would only be granted on terms protecting the plaintiff's rights.
5. It seems to me clear on a consideration of the provisions of Sections 43 and 46, Ben. Ten. Act, that the contention of the appellants must fail.
6. There is another consideration which inclines me to take the view that the appellant's contention is without force because the term of five years referred to in Section 46(7) cannot possibly refer to five years subsequent to the time when proceedings under Section 46 were started in the year 1913, for, that period, according to this view, expired long before the date of the agreement. If the right is founded on agreement, as I think it is, it seems impossible to contend that the agreement would take effect, as in the present case, for about 8 or 9 years, prior to the date of the agreement. The appellants, however, will be entitled, in the view which I have expressed as to the date from which the tenants became liable to pay enhanced rent, to get such rent for nearly six months more from 19th Kartik to the end of Chaitra 1328.
7. The result is that the decrees of the Courts below are varied by directing that the plaintiffs shall get a decree for the sum which has been awarded to them by those Courts and also for an excess sum of Rs. 25-5-0. Subject to this variation, the appeal will stand dismissed. In the circumstances of the case, there will be no order as to the costs of this appeal.
8. I agree.