Asutosh Mookerjee, J.
1. This is an appeal by the plaintiff in a suit for recovery of arrears of rent for the period between the commencement of the year 1313 and the end of the first quarter of the year 1316. The plaintiff states that the defendant is in occupation of 22 bighas of land and is bound to pay rent therefor at the rate of Re. 1-8 per bigha, which is the prevailing rate for similar lands on the locality. The defendant contends that he holds only 15 bighas at n consolidated rental of Rs. 15-10 per year. The Court of first instance found that the defendant was in occupation of 20 bighas 11 cottahs 51/4 chhataks of land and made him liable for rent at the rate of Re. 1-8 per bigha, which was established to be the prevailing rate. In this view, the original Court gave the plaintiff a decree at the rate of Rs. 3-13-6 per year. On appeal by the defendant, the Subordinate Judge held that the plaintiff was entitled to vent at the annual rate of Rs. 22-8 calculated on the basis of a rate of Re, 1-8 per bigha on 15 bighas, which was staged in the case of the defendant as the area of his holding. The plaintiff has appealed to this Court and has contended that the decree of the primary Court should not have been varied in any way. In my opinion, the decrees of both the Courts are erroneous, but the plaintiff has DO grievance, as the Subordinate Judge has decreed in his favour a larger amount than what he is justly entitled to receive in the present suit.
2. The defendant holds under a kabuliat executed on the 1st April 1885. The material portion of the kabuliat is in these terms: 'I take a settlement of 15 bighas of land as per boundaries at foot, lying within your purchased ganti jama, I will pay to you Rs. 15-10 in a lump as rent for the said land year by year, and I will continue to enjoy the profits thereof.... Bringing into operation future measurement and assessment, I will pay rent according to rent of adjoining lands.' On an interpretation of this kabuliat three points are reasonably plain, namely, first, that the area of the land demised was assumed to be fifteen bighas without actual measurement; secondly, that the rent was assessed at the lump sum of Rs. 15-10 on the assumption that the area was fifteen bighas this indicates that the rates was Re. 1-0-8 per bigha; find, thirdly, that the landlord reserved his right to have the lands measured and the rent assessed at the prevailing rate. The landlord is consequently entitled to claim additional rent for excess land as also enhancement of rent. This, indeed, he is entitled to do under Section 52 and Section 80 respectively of the Bengal Tenancy Act. There is, however, a fundamental distinction between the claim for additional rent and the claim for enhancement of rent, which was not appreciated when the plaint was drawn up. As regards the claim for additional rent, it is well settled that the landlord cm claim back rent for additional area under Section 52 of the Bengal Tenancy Act, if such additional area was in the use and occupation of the raiyat: Jagannath v. Jamman Ali 29 C. 247; Assanullah v. Mohini Mohan Das 26 C. 739. On the other hand, if the landlord seeks enhancement of rent, the rent of the raiyat cannot be enhanced, as stated in Section 28, except as provided by the Bengal Tenancy Act; the Court is required by Section 154 to specify the date from which the decree for enhancement takes effect; Section 36 further empowers the Court to order progressive enhancement. It is consequently plain that a decree for enhancement of rent can never have retrospective operation and back rent cannot be claimed at enhanced rate in the suit in which enhancement is sought. The plaintiff has not framed this suit as one for enhancement of rent he has claimed arrears of rent at enhanced rate. This he cannot get, till rent has been enhanced in a suit appropriately framed for the purpose. He is, however, entitled to additional rent for such area in excess of fifteen bighas as may be found in the occupation of the defendant, and he can succeed in respect of such claim for a period antecedent to the suit. The defendant is thus prima fact liable to pay to the plaintiff, for the years in suit, rent at the rate of Re. 1-0-8 in respect of 20 bighas 11 cottahs 5 1/4 chattaks. This works out to a rate of Rs. 21-6-9, which is slightly lower than the rate allowed by the Subordinate Judge. I am not unmindful of the provision of Sub-section 3 of Section 52, which provides that in determining the amount to be added to the rent, the Court shall have regard to the rate payable by a tenant of the same class for land of a similar description and with similar advantages in the vicinity. The Court, however, is not bound to allow additional rent at the prevailing rate. In the present case though the prevailing rate is found to have been Re. 1-8 for some years past, the fact remains that the plaintiff has allowed the defendant to cord nine in occupation without any claim for advanced rent for nearly 25 years. It seems fair under these circumstances that the back rent claimed on the excess area, namely. 5 bighas 11 cottahs 5 1/4 chhataks should be assessed for the purposes of the present suit--and for that purpose alone--at the same rate as for the remainder of the holding. I hold accordingly that the Subordinate Judge should have decreed the arrears at the rate of Rs. 2-6-9 and not at the rate of Rs. 22-8 as ho lifts done, The decree made in tin's suit will not stand in the way of a suit for enhancement of rent of all the lands comprised in the holding on one or more of the grounds mentioned in Section 30 of the Bengal Tenancy Act.
3. The result is that the appeal fails and must be dismissed with costs.
4. This is an appeal by the plaintiff in a suit which is described in thy plaint as a suit for rent at an enhanced rate. The defendant holds under a kabuliat dated 20th Chaitra, 1291, i.e., before the passing of the Benegal Tenancy Act. The kabuliat described the land let out as being 15 bighas in area, the rent payable. Using Rs. 15-10 in a lamp sum. There is a provision in the kabuliat that in case of measurement and assessment in the future, the tenant will pay rent at the rate paid for adjoining lands. The plaintiff in his plaint alleges that a measurement was made in the year 1312, the land was found to measure 22 bighas and not 15 bighas the rate for adjoining land is Re. 1-8 per bigha, and consequently prays fur a decree at the rate of Re. 1-8 for 22 bighas for the years 1313 to the Asarh kist of 1316.
5. It is admitted that the area in the tenant's occupation is the same as when was lease was granted, but the lower Courts have found that area is in fact 20 bighas 11 cattahs 51/4 chhuttaks. They have also found that the prevailing rate is Re. 1-8 per bigha. The Munsif gave a decree for the area ascertained at the rate claimed. The Subordinate Judge was, however, of opinion that the area must originally have been ascertained by measurement, and as the area had not altered, he was of opinion that the plaintiff was entitled to rent at, the prevailing rate of Re. 1-8 only for an area of 15 bighas.
6. I do not think the mere fact that a rate per big' it was not mentioned in the kabliat justifies the learned Subordinate Judge's inference that there must have been a measurement before the execution of the kabuliat.' On the other hand, there is every reason for thinking there was no measurement as the land measures considerably more than 15 bighas, whether the standard of measurement alleged by the plaintiff or that alleged by the defendant to be the standard in use in the locality be adopted.
7. I also agree with my learned brother that the clause in the kabuliat relating to measurement and assessment reserved to the landlord his right to have the land measured and rent assessed. It is argued that the clause can only have reference to hind that might be encroached upon in future, and two arguments are advanced against the view contended for by the landlord, (1) that the landlord might in that view have demanded a measurement the very day after the lease were given, (2) that the practical effect is almost to double the rent.
8. I am not impressed with either of these arguments. As to the first, if the land were leased as being of an unascertained area, there is nothing either extraordinary or inequitable in the reservation by either party of the right to ascertain the area at any date. The defendant's argument must further rest on the supposition that it was the intention of the parties that there should be no change for some time. Contracts are and must be based largely on mutual confidence, and assuming the supposition to be correct, it is clear that mutual confidence was not misplaced, as no attempt was made to vary the rent for about 25 years.
9. The second argument involves, to my mind, the curious theory that the longer a person has held at an inadequate rent, the longer is he entitled to continue to do so. The defendant has for 25 years been paying rent for an area which turns out to be only the of that actually in his possession, at a rate which is only a fraction over 2/3rds of what has been found by the Munsif to have been the prevailing rate for the last 10 or 12 years, and that fact is attempted to be used as an argument to defeat the landlord's rights under the kabuliat.
10. Then, what is the position? The kabuliat provides that on measurement, and it is not disputed that the measurement referred to is one made on behalf of the landlord, the tenant shall pay at the rates paid for adjoining land in respect of the correct area, The correct area has been found the prevailing rate has been found, but the Courts have not come to any fin ding as to whether the contingency has happened, which, it is argued, by the terms of the kabuliat justifies the demand fur rent at the prevailing rate, viz., whether there has been a measurement or not before the period covered by the demand, i.e., whether the landlord's allegation of measurement in 1312 is true or not. Had the kabuliat provided for a definite sum to be paid as rent after measurement, the proper course, to my mind, would have been to order a remand for a finding whether a measurement, had been made or not as alleged.
11. But there is another difficulty in the way of the appellant. No provision is made in the kabuliat for the machinery by which 'the rate of rent for lands paid in adjacent places' is to be ascertained, or want would be the position if there were varying rates. It is clear that if the parties were not agreed, the matter could only be settled by reference to Court. The Munsif's judgment shows that though Re. 1-8 is the prevailing rate for adjacent land, it is not the universal rate. There was thus room for dispute as to what could be said to be the rate for adjacent land. Now, it is not alleged in the plaint that the parties ever came to any agreement as to what the rate for adjacent land was. There is no suggestion that any assessment, such as is referred to in the kabuliat, had been made. In the circumstances, even assuming a measurement was made in 1312, it cannot be said that there was any obligation on the tenant to pay at a definite rate other than that at which he had previously paid. And, if there was no obligation on him to pay at a definite higher rate as each instalment of rent fell due, a suit to recover rent on the footing that he ought to have paid at the higher rate must obviously fail.
12. No doubt, under Section 52 of the Bengal Tenancy Act, the landlord could get rent for the area for which rent had not been paid, and under Sub-section (3) the Court could allow rent at the prevailing rate. But appellant's Pleader in his argument; expressly repudiated Section 52 as the basis of his claim, relying entirely on the kubuliat. Now, even if Section 52(3) were applied to the extent of allowing rent at the prevailing rate for the excess area, the rent for the rest of the land being calculated at the original rate of Re. 1-0-6 per bigha, the result would be only a small increase to the landlord above the rent allowed by the Subordinate Judge.
13. As it will be open to the landlord to bring a properly framed suit for enhancement, I agree in dismissing the appeal with costs.