Asutosh Mookerjee, J.
1. These seven appeals arise out of as many proceedings instituted, under Section 105 of the Bengal Tenancy-Act, by a landlord for assessment of fair and equitable rents in respect of lands in the occupation of his tenure-holders. The Settlement Officer held that the rents were unalterable and dismissed the suits. Upon appeal, the Special Judge has held that the rents were enhanceable and he has accordingly settled fair and equitable rents. The tenure-holders have appealed to this Court and have urged, first, that the rents of their tenures are not enhanceable; and, secondly, that if the tenures are not protected from enhancement, the Special Judge has settled rent on principles erroneous in law.
2. As regards the first point, the tenure-holders rely upon Section 6 of the. Bengal Tenancy Act which is in the following terms:
6. Where a tenure has been held from the time of the Permanent Settlement, its rent shall not be liable to enhancement except on proof-
(a) that the landlord under whom it is held is entitled to enhance the rent thereof either by local custom or by the conditions under which the tenure is held, or
(b) that the tenure-holder, by receiving reductions of his rent, otherwise than on account of a diminution of the area of the tenure, has subjected himself to the payment of the increase demanded, and that the lands are capable of affording it.
3. This Section is founded upon the first sub-Section 51 of Regulation VIII of 1793 which was repealed by Schedule 1 to the Bengal Tenancy Act and was in the following terms:
No zemindar or other actual proprietor of land shall demand an increase from the talukdars dependent on him, although he; should himself be subject to the payment of an increase of jama to Government, except upon proof that he is entitled so to do, either by the special custom of the district, or by the conditions under which the talukdar holds his tenure, or that the talukdar, by receiving abatements from his jama, has subjected himself to the payment of ,the increase demanded, and that the lands are capable of affording it.
4. Section 6(a) prescribes that where a tenure has been held from the time of the Permanent Settlement, its rent shall not be liable to enhancement, except upon proof-that the rent is enhanceable either by local custom or by the conditions under which the tenure is held. In the cases before us, there is no proof of local custom. Consequently, we have to determine, first, whither the tenures have been held from the time of the Permanent Settlement, and, secondly, what are the conditions under which the tenures are held. As regards the first branch of this enquiry, there can be no doubt that the tenures have been held from the time of the Permanent Settlement. The tenures are comprised in Estate No. 209. The Courts below have, found that from a time antecedent to the Decennial Settlement, Pargana; Dandra was held in two shares, namely, four annas and twelve annas. The four annas share belonged to one Muhammad Ali Chaudhuri. He was imprisoned for life as a rebel, by an order of the Supreme Council, dated 7th December 1792, and by a subsequent order dated 8th February 1793 his estate was confiscated. The evidence shows that before this escheat, there were 45 taluks under the four annas zemindari, and Mahomed Ali had a nij taluk, which, after the escheat, was divided into 35 topas. When the Government took, possession of the zemindari after the escheat, dowls were taken from the talukdars and rents were specified thereto without specification of the area of the land comprised in each taluk. The tenures now in dispute have been identified with those in existence at the time of the escheat, and there can accordingly be no doubt that these tenures must be deemed to have been held from the time of the Permanent Settlement within the meaning of Section 6 of the Bengal Tenancy Act.
5. As regards the second branch of the enquiry into the history of the disputed tenures, it may be stated at the outset that an endeavour was made in the course of argument to establish that they were independent taluks. This contention was based on the assumption that when the zeminidri was confiscated by order of the Supreme Council on the 8th February 1793 it was extinguished, and that the lands were thereafter held by the Government as the Sovereign power. This position his not been made out by relevant evidence. The true effect of an order for confiscation mist depend on its term as happened in tae cases of Rajah Dundial Singh v. Rajah Anund Kishwar Singh 1 M.I.A. 482 : 1 Sar. P.C.J. 142 : 18 E.R. 192; Baboo Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee 12 M.I.A. 1 : 9 W.R. 15 (P.C.) : 2 Suth. P.C.J. 114 : 2 Sar. P.C.J. 348 : 20 E.R. 341 and Ram Nundun Singh v. Janki Koer 29 I.A. 178 : 29 C. 828 : 4 Bom. L.R. 664 : 7 C.W.N. 57 : 8 Sar. P.C.J. 351 (P.C.). In the present case, the order for confiscation has not been produced, nor have we on the record the order made in 1869 whereby the estate was returned to one of the heirs of Muhammad Ali Chowdhuri and to the representatives of the other heirs. It is impossible, in these circumstances, to assume that the original zemindari was extinguished in 1793 and a new zemindari was created in 1869. On the other hand, there is some indication that for several years malikana was paid to the heirs of Muhammad Ali Chaudhuri, which is consistent with the theory that the zemindari continued to exist, but was held, khas and managed by Government through its own servants. We hold accordingly that the Courts below rightly declined to adopt the view that the tenure-holders in these cases were independent talukdars.
6. We have next to examine the conditions under which the tenures are held. No document has been produced to show that the rents were fixed in perpetuity when the settlements were made with the talukdars after the zemindari had been confiscated. For many years there was considerable difficulty in the management of the estate by the Revenue Authorities, and successive projects for settlement were tried and kept in abeyance. The real difficulty was that, notwithstanding surveys and measurements, the area of the land which each talukdar was entitled to hold, as compared with the land actually in his occupation, could not be determined with any approach to accuracy. Two shares in the zemindari which had been carved out of the twelve annas share, were sold for arrears of revenue in 1835 and were purchased by the Government. The result was that whenever there was a dispute as to the land in the occupation of talukdar, the question arose, whether it was comprised in the four annas zemindari of Muhammad Ali Chaudlxuri held khas by the Government after confiscation, or to one or other of the two shares purchased by the Government at the revenue sale, or to the residuary share. In such a state of uncertainty, settlement of rent in perpetuity was impracticable. In 1846, however, on the basis of measurement and re-measurement previously made, rent was assessed at the rate of Rs. 3-15-6 per kani. There is No. indication that this was the rate adopted at the time of the Permanent Settlement; indeed, there is no evidence to show that the rent had bean settled in 1793 at a fixed rate applied to an ascertained area. On the other hand, there is ample evidence that the rate of Rs. 3-15-6 which was made the basis of settlement in 1846, was adopted as the fair and equitable rate. Different Revenue Officers had proposed different rates, such as Rs. 5-8-0, Rs. 5, Rs. 4-6-0, Rs. 4, Rs. 3-15-0 and Rs. 3-8-0. On consideration of the productive character of 1$ie lands, the rate was ultimately fixed at. Rs. 3-15-6. This clearly militates against the theory that the rate was fixed in perpetuity, specially when we find that the settlement was intended to be operative for a term of thirty years only. In such circumstances the principle of the decision in Bamapada Roy v. Midnapore Zemindari Co. Limited 16 Ind. Cas. 376 : 16 C.L.J. 323, applies, namely, that where the original nature of the tenancy is not known, the fact that the rent has been altered once, negatives the hypothesis that the rent had been fixed in perpetuity. This does not conflict with the view taken in Ramanuj Mahanta v. Midnapore Zemindary Co. Limited 14 Ind. Cas. 729 : 16 C.W.N. 725 where, as pointed out in Priyanath Ghose v. Surendra Nath Das 69 Ind. Cas. 992 : 26 C.W.N. 657 : 35 C.L.J. 440 : (1922) A.I.R. (C.) 511, the nature of the tenancy was known and could not be altered by enhancement of rent by consent of parties on one occasion. The cases before us are, in fact, stronger, in so far as the landlord is concerned, then the cases mentioned in the books. Here the history of the Settlement of 1846 has been unravelled in detail; it has been ascertained beyond doubt that the rate then taken as the basis was adopted as the rate fair and equitable at that time, and there was no intention to fix that rate in perpetuity. We hold accordingly that the Special Judge was right in his conclusion that the tenures are not held on the condition that the rate of rent was perpetually fixed at Rs. 3-15-6 in 1846 and that fair and equitable rent may accordingly be settled now, notwithstanding the fact that the rate of rent has not been altered since that period.
7. As regards the second point, namely, whether the Special Judge has settled fair and equitable rent on the correct principles, we are of opinion that his decision cannot be supported. The Special Judge has not considered all the elements specified in Section 7 of the Bengal Tenancy Act, and his judgment upon the question of the allowance to be made for improvements, in particular ignores relevant materials on the record. The matter requires close and careful examination, as the enhancements decrees are very substantial and seriously affect the position of the tenure-holders. We are convinced that the problem of the nature of the tenures engrossed the attention of the parties and of the Court, and that the question of the extent of the enhancement permissible has not been adequately investigated.
8. The result is that the finding of the Special Judge that the disputed tenure are not held at fixed rates of rent is affirmed, but subject to this, the appeals are allowed, the decrees of the Special Judge set aside, and the cases remitted to the Settlement Officer for determination of the enhancement to be allowed in accordance with the principles enunciated in Section 7 of the Bengal Tenancy Act. The landlord as also the tenants will be at liberty to adduce fresh evidence upon all points which may require investigation in connection with the question of the settlement of fair and equitable rent.
9. As the victory has been a divided one, the parties will bear their own costs in all the Courts up to this stage. The costs in the primary Court after remand will hi in the discretion of that Court.