1. In the suit out of which this appeal arises, the plaintiffs claimed enhancement of rent under Section 30 of the Bengal Tenancy Act on the ground that the rate of rent paid by the tenant was below the prevailing rate, and also on the ground of there being a rise in the prises of staple food crops. The plaintiffs also claimed additional rent on account of excess area under Section 52 of the Bengal Tenancy Act.
2. The Court of first instance gave a decree for enhancement on the ground of a rise in the prices of staple food crops, disallowed enhancement on the bead of prevailing rate, and also disallowed the claim for additional rent for additional area.
3. Both parties appealed to the lower Appellate Court, but the decree of the Court of first instance was maintained on appeal. The plaintiffs have appealed to this Court.
4. It appears that Ishan Chandar Sircar, the plaintiffs' predecessor in title, acquired a kaimi mourasi mokarari (Sic)e by auction purchase, and the defendants' predecessor, Isoo Mullick, took settlement of an 8-annas share of the said land at a rental of Rs. 7 10 on execution of a registered kabuliyat in favour of Ishan in Aughrahayan 1295. Subsequently Isoo took settlement of the remaining 8 annas at a rent of Rs. 7-10. The defendant, who is the successor-in-interest of Isoo, is, therefore, now in possession of the entire land described as 22 pakhis in the plaint at Rs. 15-4. The plaintiffs say that the area of the land on measurement at a recent settlment proceeding was found to be 41 1/2 pakhis and that the defendant, therefore, was liable to pay additional rent for the excess area.
5. If the case comes under Section 52 of the Bengal Tenancy Act, the landlord is bound to prove what the area of the land was at the inception of the tenancy, by what standard the area was found and that by the same standard of measurement there has been an excess. In our opinion, therefore, the Court of Appeal below is right in holding that the plaintiff cannot succeed if the claim for excess rent on account of excuse area is based upon Section 52 of the Act.
6. It has been contended before us that there is a written contract in the present case and that the plaintiffs are entitled to additional rent on the basis of the said contract, and reliance is placed on the case of Whyte v. Bhairab Majhi 53 Ind. Cas. 872 : 30 C.L.J. 121. The written contract, however, is with respect to the 8 annas share only. There is no written contract with regard to the other 8-annas. Bat it is contended that the kabuliyat with respect to the 8-annas share might he treated as evidence of the terms under which the other 8-annas share is held. The suit, however, has not been framed upon the basis of any contract; it was really based upon the provisions of Section 52 of the Bengal Tenancy Act.
7. Under the circumstances, we think that the plaintiff may be allowed to withdraw the claim with regard to additional rent with respect to the additional area, with liberty to bring a fresh suit in respect of the same subject-matter.
8. With respect to the enhancement of rent claimed on the ground that the rate of rent paid by the tenant is below the prevailing rate, it is to be observed that the plaintiff applied to the Court of first instance for inquiry by a Commissioner. That application was disallowed and the learned Subordinate Judge on appeal says that there was no application to have an inquiry made by a Revenue Officer as prescribed in Section 31 of the Bengal Tenancy Act. In these circumstances, the plaintiff may be allowed also to withdraw the claim with regard to the enhancement of rent on the head of prevailing rate, with liberty to bring a fresh suit in respect of the same subject-matter.
9. As stated above, the plaintiff has obtained a decree for enhancement of rent on the ground of a rise in the prises of staple food crops. That decree will stand.
10. The result is that the plaintiff will be allowed to withdraw the claim for additional rent for additional area and also the claim for enhancement of rent on the ground that the rate of rent paid by the tenant is below the prevailing rate, with liberty to bring a fresh suit with respect to the same subject-matter. The decree of the lower Appellate Court with regard to enhancement of rent on account of rise in the prices of staple food crops will stand. Subject to the above direction, the appeal stands dismissed.
11. The plaintiff-appellant must pay the respondent's costs in all Courts. The costs must be paid to the defendant before any fresh suit is brought The amount of costs in all the Courts will be embodied in the decree.