1. This is an appeal from the judgment of the District Judge of Muzufferpur dated the 17th June 1911. The plaintiff is the landlord and as such he sued the defendant, who is an occupancy raiyat of Mouza Bishunpur, Chandpur Lakhiraj, for enhancement of rent, on the ground that the rate at which the defendant paid rent was below the prevailing rate paid by raiyats for similar lands in neigh bouring villages and also on the ground of a rise of price of staple crops. The Munsif gave a decree at the rate of Rs. 5 per bigha for the years in suit and declared Rs. 5 per bigha for future years as the prevailing rate. On appeal, the learned District Judge held that the rent could not be doubly enhanced, both on the ground of the prevailing rate and also on the ground of a rise of prices, and that the prevailing rate should be fixed at Rs. 4 per bigha. He gave a decree for the years in suit at the then existing rate. The defendant appeals to this Court and we are now asked to decide the correctness of the judgment of the District Judge.
2. The points taken are that the lower Appellate Court was in error in thinking that the average rate of the neigbouring villages is the prevailing rate and that as no one prevailing rate was found, the suit should have been dismissed.
3. The finding of the lower Appellate Court is that there is really no prevaling rate in the neighbouring village. It appears that in-one village the rate varies from Rs. 1 to Rs. 116 per bigha. It is further found that there are 511 tenants in three neighbouring villages, and of these 487 pay rent at the rate of Rs. 4 per biglia and over. This cannot be held to be the prevailing rate. The learned District Judge admits that the provisions of Section 31 (a) of the Bengal Tenancy Act have not been extended to Mozafferpore. At the same time he was led, in order to do justice, practically to apply the same principles to the present case. We have to administer the law and we cannot in the circumstances of the present case hold that any one prevailing rate has been ascertained and found and, therefore, no decree for enhancement can be given in this case.
4. The appeal is decreed and costs to abide the result. The lower Appellate Court having come to no decision' on the question of enhancement on the ground of rise in prices of staple crops, the case is remanded for disposal after an inquiry whether the landlord is entitled to enhancement on this ground.
5. This judgment governs the other appeal No. 3348 of 1911.
6. Coxe, J.--I agree. The finding of the District Judge is that the great majority of the raiyats pay at the rate of Rs. 4 and over and, therefore, the prevailing rate of these villages cannot be said to be less than Rs. 4. In my opinion Rs. 4 and over is not a rate at all, much less a prevailing rate, unless the artificial construction contained in Section 31(a) is placed on that expression.
7. The fact seems to be that the provisions of that section are so reasonable that the learned District Judge was naturally inclined to apply it in his district, even although it was not formally extended; but as it has not been extended, we must assume that it is not the intention of the Legislature that the section should apply. The question, however, of extending it to the district might very well be considered.