1. This appeal arises out of a Suit for rout. Plaintiff claimed rent at the rate of Rs. 44-14-0. The defence was that the rent payable was Rs. 32-4-0. It appears that the rout was enhanced in 1892 from Rs. 32-4-0 to Rs. 39-14-0 and subsequently to Rs. 44-14-0. The lower Appellate Court has held that the plaintiff cannot recover runt tit the rate of Rs. 44-14-0, but has decreed runt at the rate of Rs. 39-12-0.
2. It appears that the jama, of Rs. 32-4-0 consisted of several smaller jamas. One of them bore a rental of Rs. 17-8-0 and was held under a kabuliat, dated Chati 1288. That jama together with four others were consolidated into one jama of Rs. 32-4-0 and the rent was enhanced in 1299 to Rs. 39-12-0.
3. The enhancement was more than two annas in the rupee and if the defendant was an occupancy raiyat, the enhancement was void under the provisions of Section 29 of the Bengal Tenancy Act. The kabuliat was executed in the year 1288, and that enhancement having been effected in 1299 the defendant could not have held the land for 12 years, it is stated in the kaluliat that the defendant was in occupation of the holding bearing a rental of Rs. 17-8-0 from before the date of the kabuliat. The learned Judge has found there is nothing on the record to show that the period of his occupation of the land was 12 years before the jama was enhanced in the year 1299 from Rs. 32-4-0 to Rs. 39-14-0.' It is contended on behalf of the appellant that, in arriving at this finding, the learned Judge has laid the onus of proof upon the defendant, ignoring the povisions of sub-Section 7 of Section 20 of the Bengal Tenancy Act. We think that thin contention must prevail. It is no doubt true that the question to the decided is not whether the defendant is now in possession of the land for 12 years, but whether at the date of enhancement, namely, in 1892, he was in possession for over 12 years. The defendant possession of the land for 11 years prior to the date of enhancement is found to be proved by the learned Judge. Under Sub-section (7) of Section 20 of the Bengal Tenancy Act, therefore, there was a presumption that the defendant had held the land for 12 years, This presumption was apparently lost sight of by the learned Judge.
4. The case must accordingly go back to the tower Appellate Court so that that Court may take the presumption into consideration and then come to n finding whether the defendant had been in possession of the land for 12 years prior to 1299, the date of enhancement. It will be open to both the parties to adduce evidence on the point.
5. Another question has been raised and that is this. Even if the defendant was not a settled raiyat and was merely a non-occupancy raiyat the date of enhancement, it has not been found by the lower Appellate Court that rent was paid at the rate of Rs. 39-12-0 for a continuous period of not less than three years immediately preceding the period for which rent was claimed. The Court of first instance says: 'The collection papers proved by the plaintiff in this case no doubt show that defendant subsequently paid rent at the increased rates of Rs. 39-14-0 and Rs. 44-14-0, though this is denied by the defendant.' The learned Judge has not come to any finding, and he should come to a finding upon the point, if the first question is decided against the defendant.
6. The decree of the lower Appellate Court is set aside and the case remanded to that Court to he dealt with and disposed of in accordance with the above observations. Costs will abide the result.