1. This appeal arises out of an applicantion under Section 105 of the Bengal Tenancy Act for settlement of fair and equitable rent and also for additional rent for additional area. The only question before us is whether the presumption under Section 50, Sub-section (2) arises upon the circumstances of the case. The Assistant Settlement Officer granted an enhancement of rent to the plaintiffs. On an appeal preferred to the Special Judge, the Special Judge dismissed the plaintiffs' claim in that respect. The plaintiffs thereupon preferred an appeal to this Court, and the appeal was dealt with by my learned brother B.B. Ghose, J., who hasmadean order of remand From this order the present appeal has been preferred under the Letters Patent on behalf of the tenant-defendants.
2. The plaintiffs' case was that the presumption under Section 50, Sub-section (2) of the Bengal Tenancy Act did not arise as there had been enhancement of rent of the defendants' holding on two occasions: first, in 1282 and again in 1292. So far as the enhancement alleged to have been made in 1282 was concerned the plaintiffs' case with regard to that was not accepted by the learned Special Judge. As to the enhancement alleged to have been made in 1292 what the learned Judge observed in his judgment was this: 'If there was an addition of one pice per kani to the rent in 1292 it was not a substantial change. It was done, if it was done at all, in order that the landlord might say that the rent had not been always the same rather than in order to make a real change in the rent.' The learned Judge, therefore, seems to have been of opinion that as a matter of law a change unless it is of a substantial character is not sufficient to stand in the way of presumption and that even if the alteration is made with the object of making an enhancement that variation is not to be taken into account if it is not a variation by substantial amount. In my opinion this position seems to be indefensible. Sub-section 2 of Section 50 is to the effect that if the rent or rate of rent has not been changed during 20 years immediately before the institution of the suit or proceedings the presumption shall arise. All that is necessary to find is whether there has been a change in the rent or rate of rent. Of course, the change must be a real one in the sense that it was intended to be a change but that does not mean that it must be of a substantial amount. It is true that in a number of decisions to which our attention has been drawn it has been laid down that small variation of rent though unexplained does not stand in the way of this presumption. The authorities to which our attention has been, drawn are the cases of Baboo Huro Nath Roy v. Amir Biswas 1 W.R. 230, Ramrutno Sircar v. Chunder Mookhee Debea 2 W.R. Act X Rul. 74, Anundloll Chowdry v. Mr. James Hills 4 W.R. Act X Rul. 33, Munsoor Ali v. Bunoo Singh 7 W.R. 282, Tara Kumar Ghose v. Kumar Arun Chandra Singh 74 Ind. Cas. 383 : 36 C.L.J. 389 : A.I.R. 1923 Cal. 261 and Alimuddin Moolah v. K.S. Banerjee : AIR1925Cal632 . The last two cases merely rely upon the proposition as having been a well-settled one in view of the earlier decisions referred to above. It is true that in some of these earlier cases, if not in all there were small variations in the rent and even though they were not explained such variations were not considered sufficient to deprive the tenant of the benefit of the presumption. But on looking into these cases, it would appear that no proposition of universal application was laid down in any of them. Indeed no such proposition could possibly have been laid down; for, it may be that a very small addition to the rent may sometimes be made so that the tenant may not be actually harassed and at the same time that he may not afterwards set up a plea to the effect that his rent has never been altered. The relevant question is whether there has been really a change or variation and not whether the same was in respect of a substantial amount; and the amount of the variation is only one of the elements to be considered in determining that question. In order to decide the question it will also have to be considered whether the tenant submitted to it. This is the view which my learned brother B.B. Ghose, J., has taken of the matter. He has observed in his judgment that there is no finding in the judgment of the learned Special Judge as to whether there has been' a change in the rent or rate of rent payable by the tenants in 1292 to which the tenants have agreed and he has remanded the case for this question being dealt with; and his order, in my opinion, is perfectly correct.
3. I am, therefore, of opinion that there is no substance in this appeal and it should be dismissed' with costs.
4. I agree.