1. This appeal arises out of a suit under Section 104H of the Bengal Tenancy act relating to two plots of land, one measuring 303 bighis 2 cottas 4 chittaks and the other measuring 9 bighats 16 cottas 9 chittaks. The former is claimed by the plaintiffs as an occupancy holding and the latter as their lakheraj.
2. The plaintiffs were recorded as tenure-holders in respect of the first plot of land and the Second plot was entered as mil land in the Record of Rights and the rent was settled on the basis of the plaintiffs being tenure-holders. The plaintiffs prayed in this suit for a declaration that they were occupancy raiyats and not tenunre-holders in respect of the first plot of land, that the assessment of rent under Section 7 of the Bengal Tenancy act was wrong and that the original rent was fair and equitable and that the second plot (9 bighas and odd) is lakheraj.
3. The Court of first instance found that the second plot of land was lakheraj, that the first plot of land constituted an occupancy holding of the plaintiff, that the rent settled was incorrect and that the entry as regards the rent of the first plot should be corrected by substituting the amount which the plaintiffs had been paying prior to the publication of the Record of Rights.
4. On appeal, the learned District Judge held that 7 bighas 6 1/2 cottas of land put of the second plot were mal, that the remaining lands of that plot were lakheraj, that the plaintiffs were occupancy raiyats and that the fair rate of rent was Ra. 1-8 per bigha, and he made a decree accordingly.
5. The plaintiffs have appealed to this Court.
6. Two contentions have been raised on behalf of the appellants. The first is that the assessment of rent by the learned District Judge at the rate of Re 18 per bigha has been made on an erroneous ground.
7. Section 104H, Sub-section (4), provides that 'If it appears to the Court that the entry of rent settled is incorrect, it shall settle a fair rent', and Sub-section (6) provides that 'in settling a fair rent under Sub-section (4) the Court shall be guided by the rents of the other tenures or holdings of the same class comprised in the same settlement rent roll, as settled under Sections 104A to 104F.'
8. The learned Subordinate Judge observed: 'The plaintiffs are occupancy raiyats and the presumption is that the existing rent is fair until the contrary is proved. The defendant has, I find, failed to prove the contrary. The rent roll of the Mouzas within which the land is situate has not been proved. The rent rolls of his Mouzas of Pargana Paharpur have been produced. These Mouzas do not appear to be adjoining Mouzas. So I cannot act on these rent rolls.'
9. The learned District Judge on appeal said: 'The rent (12 annas a bigha) that the plaintiffs were paying prior to the recent settlement was fixed in the year 1876, 40 years ago, and the appellant-defendant has proved that in some of the neighbouring villages the raiyats were paying rent for similar lands at the rate of Re 1-8 a bigha. The plaintiffs themselves are realising rent from their undertenants at the rate of Rs. 2-4 or more a bigha. 1 am of opinion, therefore, that one rupee eight annas will be a fair rate of rent for all cultural land.' The learned District Judge referred to rent paid for similar lands in neighbouring villages, but what the Court has to consider is the rent of other holdings of the same class comprised in the same settlement rent roll and the mere fact of the villages being neighbouring does not necessarily show that they are comprised in the same settlement rent roll. The case must, therefore, go back to the lower Appellate Court, in order that fair rent may be settled having regard to the provisions of Sub-section (6) of Section 104H.
10. The next contention relates to the lakheraj land. The learned District Judge, it appears, appointed a Commissioner to find oat whether the land claimed as lakheraj fell within plots Nos. 20, 21 and 22 of the Survey Map of 1876, and the Commissioner found that 7 bighas 6 1/2 cottas of the lands in dispute were identical with the lands lying within the said plot, namely, plots Nos. 20, 21 and 22. Now these plots admittedly were mal lands. The finding of the learned District Judge in so far as 7 bighas 6 1/2 cottas are concerned will, therefore, stand.
11. In the result, the decree of the lower Appellate Court, so far as the .303 bighas and the 7 bighas 6 1/2 cottas are concerned, will be set aside and the case sent back to that Court in order that fair rent may be settled in respect of the 303 bighas and odd cottas as also in respect of 7 bighas 6 1/2 cottas of the land mentioned above. Costs will abide the result.