1. These two appeals arise out of a suit for enhancement of rent. The cause of action stated in the plaint is that the defendants are intermediate tenure-holders who have been realising more rent from the tenants than they are entitled to do. Upon this ground alone the plaintiff cases his cause of action for enhancement of rent. At the hearing before the Trial Court some evidence was adduced by the plaintiff to prove that the defendants were holding the tenures at rents lower than the customary rate of rent in the locality for lands of similar description. The learned Munsif found that the plaintiff had failed to prove that the customary rate of rent in the locality for lands of similar description was much above what the defendants paid. Having come to this finding the learned Munsif proceeds to ascertain the price of the yield of land and having deducted the collection charges and reasonable profit to the defendants he allowed a decree in favour of the plaintiffs for enhancement of rent to the extent of Rs. 216 over and above the rent already payable for the two tenures. The defendants appealed and the learned District Judge dismissed the plaintiff's suit on the ground that the case as made out in the plaint did not disclose any cause of action.
2. The plaintiff appeals before us and contends that the view taken by the lower Appellate Court is wrong in law and that he ought to have been allowed enhancement of rent on the ground on which the learned Trial Court had proceeded. The decision of the learned Judge is founded upon the plaint and finding of the Court of first instance. In the plaint, as we have observed, the plaintiff does not state any cause of action besides the facts that the defendants are realising more profits than they are entitled to do. It is argued before us that the suit was brought under Section 7, Bengal Tenancy Act and that Clause (2), of that section applies to the present case, namely that the Court is to enhance the rent to such limit as it thinks fair and equitable. As we read Section 7, it entitles the plaintiff to claim enhancement of rent firstly, when the rent payable by the defendant is lower than the customary rent; secondly, when such customary rent does not exist, the rent may be enhanced to such limit as the Court thinks fair and equitable. Reading these two clauses together it seems to be clear that the plaintiff must come to Court with the allegation either that the customary rate of rent exists and the defendant is paying rent at a rate lower than the customary rate, or that no customary rate exist and the Court is asked to proceed to enhance the rent up to the limit which it thinks to be fair and equitable. In this case the plaintiff did not adopt either of these courses. At the hearing an attempt was made to prove the customary rent. The finding of this point is recorded by the learned Munsif in these words: 'Some attempt was made by the plaintiff to prove that the customary rate of rent in the locality for lands of similar description is much above what the defendants pay, but it is conceded by the learned pleader for the plaintiff that the attempt has proved futile.' The learned District Judge has correctly interpreted this sentence to mean that the Munsif did not find that there was no customary rate but he seems to think that the plaintiff has failed to prove that the defendants' rent is lower than the customary rent. The learned Judge therefore rightly observes that on such a finding the Munsif is not entitled to proceed under Clause (2) of Section 7, Bengal Tenancy Act. The condition precedent to entitle a Court to take assistance of Clause (2) is that it must be found that, there is no customary rate of rent. The result of the Munsif's finding seems to be that there is a customary rate but the plaintiff has failed to prove that it is higher than the rent paid by the defendants. If that be so, the plaintiff's suit is liable to be dismissed. It is, however, argued before us that if the Court finds that the plaintiff failed to prove the customary rate of rent it amounts to a finding that there is no customary rate and in support of this contention our attention has been drawn to the decision of the Judicial Committee of the Privy Council in the case of Hem Chandra Chowdhry v. Kali Prosunno Bhaduri (1903) 30 Cal. 1033. In that case, as appears from the judgment of their Lordships, the Trial Court found that the plaintiff had failed to prove the existence of any customary rate and accordingly proceeded to ascertain by an examination of the evidence before him the limit to which the rent might be fairly and equitably enhanced. We do not know the nature of the defence in that case and cannot ascertain the effect of the Subordinate Judge's finding. The case proceeded not upon the correctness of the procedure adopted by the Subordinate Judge in that case but upon the admissibility of certain road-cess return papers on which the decision of the Subordinate Judge was based. The High Court and the Judicial Committee differed in their opinion as to the admissibility of those documents. The question of the interpretation of Clause (2) of Section 7, Bengal Tenancy Act, did not arise in that case as it appears from the judgment of the High Court in Hem Chandra Chowdhry v. Kali Prosunno Bhaduri (1899) 26 Cal. 832 that the point was conceded and the decision proceeded upon the question of the admissibility of the road-cess returns. It is not necessary for us in the present case to go the length of holding that where the plaintiff asserts the existence of customary rate of rent and fails to prove it, the Court is or is not justified in holding that no customary right exists. There is no finding by the Munsif that the plaintiff has failed to prove customary rate of rent. What he finds is that the plaintiff has failed to prove that the defendants are holding at a rate lower than the customary rate. On this finding we are of opinion that the Munsif was not justified in proceeding to ascertain the assets of the tenures under Clause (2) of Section 7. The learned District Judge in appeal rightly observes that until the Court finds that there is no customary rate in existence, it cannot proceed to enhance the rent up to the limit that the Court finds fair and equitable under Sub-section (2) of that section; and in support of this view we may refer to the case of Midnapore Zemindari Co. v. Sridhar Mahata A.I.R. 1922 Cal. 152, where the learned Judges observe as follows:-'Where the landlord seeks to have the rent of a tenure-holder enhanced under Section 7, the first point for investigation is whether the rent is liable to enhancement. When this has been made out, the next point for determination is, whether there is 'a customary rate payable by parsons holding similar tenures in the vicinity. It is only when this has been answered in the negative, that the rent can be enhanced up to such limit as the Court thinks fair and equitable.' We therefore hold that the view taken by the learned Judges is correct and the plaintiff's appeals must fail.
3. It is, however, argued before us that the plaintiff's suit should not have been totally dismissed. It is further alleged that he is entitled to cesses and damages. These matters should have been investigated by the lower Court if they were brought to its notice. We, therefore, dismiss the appeals in substance and remand the cases to the lower Appellate Court for a determination whether the plaintiff is entitled to any decree in respect of rent, cesses and damages payable to him at the old rate. As this defect in the judgment of the lower Appellate Court could have been remedied by way of review we think that the proper order to make is to allow the costs of these appeals to the respondents.