Asutosh Mookerjee, J.
1. This is an appeal by the plaintiffs in a suit for recovery of arrears, of rent due for the years 1313 to 1316 (Fasli). The case for the plaintiffs is that the holding in question was originally bhowli, that about the year 1889, the rent was commuted into nagdi at the rate of Rs. 5 a year and that rent was realised at that rate up to the year 1897, when the tenants agreed to pay rent at the enhanced rate of Rs. 6-8 in consideration of an improvement to be effected by the landlords. The improvement in question was a channel through which surplus water might flow out of the land. The plaintiffs assert that the improvement was effected at their expense and that the tenants have enjoyed the benefit thereof. The plaintiffs further allege that rent was paid by the tenants at the rate of Rs. 6-8 per bigha till quite recently, when there was a fresh agreement to pay rent at the enhanced rate of Rs. 9 per bigha in consideration of an improvement in the channel. The defendants deny all the allegations of the plaintiffs. They also deny the character of the tenancy and contend that rent was never paid even at the rate of Rs. 5 per bigha. They allege further that there was no agreement to pay rent at the rate of Rs. 6-8 on account of the improvement mentioned, much less was there a subsequent agreement to enhance the rent to Rs. 9. They finally contend that if there was an agreement for enhancement of rent, it was illegal as made in contravention of Section 29 of the Bengal Tenancy Act. The Court of first instance gave the plaintiffs a modified decree, which was confirmed on appeal by the District Judge. The case was then brought in second appeal to this Court and was remanded. This Court directed the District Judge to find whether the contract for enhancement of rent was valid and operative under Section 29 of the Bengal Tenancy Act, and, if it was not so operative, to determine, to what extent the rent should be enhanced under Section 30 (e) of the Bengal Tenancy Act. This remand was based on two findings contained in the judgment of the District Judge; namely, first, that there was an agreement to pay rent at the rate of Rs. 6-8 in consideration of the improvement to be effected by the landlords; and secondly, that the improvement in question had been made at the cost of the landlords and the benefit thereof had been enjoyed by the tenants. After remand, the District Judge has held, first, that the contract for enhancement of rent was invalid under Section 29 of the Bengal Tenancy Act. Secondly, that the plaintiffs were entitled to rent at the rate of Rs. 5-10 per bigha under Section 30 (c) of, the Bengal Tenancy Act. He has accordingly modified the decree by the Primary Court and has also allowed the plaintiffs damages upon the sum decreed in their favour. The plaintiffs have appealed against this decree. The defendants also have appealed on the ground that no enhancement should have been allowed and that no decree for damages should have been made. The appeals by the plaintiffs raise two substantial questions; first, is the contract for enhancement of rent valid under Section 29 of the Bengal Tenancy Act; and, secgndly, if it is not valid, what is the enhanced rent which should be decreed to the plaintiffs under Section 30 (c) of the Bengal Tenancy Act.
2. As regards the first question, there is now no controversy that the tenants did agree to pay enhanced rent in consideration of improvements to be effected by the landlords at their expense, that the improvements have been made and that the tenants have enjoyed the benefit thereof. But as this agreement for enhancement was not in writing and registered, as required by Clause (a) of Section 29, the question arises, whether the plaintiffs have brought themselves within Clause (1) of the proviso to that section. Clause (1) of Section 29 provides that the money rent of an occupancy raiyat may be enhanced by contract, subject to the condition that the contract must be in writing and registered. To this is added the proviso that nothing in the section shall prevent a landlord from recovering rent at the rate at which it has been actually paid for a continuous period of not less than three years immediately preceding the period for which the rent is claimed. Before the District Judge, it was argued that in all human probability the tenants paid rent at the enhanced rate of Rs. 6-8 a bigha, as contemplated by the first clause of the proviso. The considerations urged in support of the argument are set out in the judgment of the District Judge and may be recapitulated here. If there was an agreement to pay rent at the rate of Rs. 6-3 and if the improvements in question were effected by the landlords at their expense and enjoyed by the tenants, is it at all probable that the landlords should have from 1304 to 1312 accepted rent at the lower rate? No suit for rent was previously brought; rent had been amicably settled and it was difficult to understand why the landlords should have, during all these years, contented themselves with the smaller rent after they had invested capital on the works of improvement, in consideration of which the tenants agreed to pay a higher rent. The District Judge concedes that these considerations show that in all human probability the defendants had paid a sum higher than Rs. 5 per bigha from 1304 to 1312. But he declined to draw the inference that the rent had been paid at the enhanced contract rate, because, in his opinion, it was absolutely impossible to say what the sum paid was. In another passage in his judgment, he states that although the tenants agreed to pay Rs. 6-8 per bigha, if the landlords would improve the irrigation in the village, they did not in fact pay the whole of that amount, and the landlords, rather than fight the whole body of tenants, were glad to accept any addition to the previous rent which they were willing to give. In our opinion, the treatment of the case by the District Judge involves two errors of law, namely, first, he has applied a test of proof other than that embodied in Section 6 of the Indian Evidence Act; and sec ndly, he has not correctly appreciated the requirements of the first clause of the proviso to Section 29 of the Bengal Tenancy Act.
3. As regards the first point, we must bear in mind that Section 3 of the Indian Evidence Act lays down that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The effect of this section has been considered in two recent cases; namely, Boisogomoff v. Nahapiet Jute Company 29 C. 323 : 6 C.W.N. 405 and Jarat Kumari Dassi v. Bissessur Dutt 13 Ind. Cas. 577 : 39 C. 245 : 16 C.W.N. 265. In the second of these cases, Jenkins, C.J., pointed out that the materials on which Courts have to pronounce are necessarily imperfect; for apart from the inherent uncertainty of human affairs, the presentment of them to a tribunal is ordinarily the outcome of faulty observation, defective memory, inaccurate description and natural bias, and even that is blurred sometimes by the intervention of interpretation. Demonstration or a conclusion at all points logical cannot be expected, nor can a degree of certainty be demanded of which the matter under investigation is not reasonably capable. The Evidence Act, consequently, expresses the rule in terms which allow full effect to be given to circumstances or conditions of probability or improbability. To the same effect is the observation of Banerjee, J., in the case first mentioned; that Section 3 only lays down a rule of common sense. The judgment of the District Judge in this case shows that he has tested the evidence as if the Indian Evidence Act only provided that a fact is said to be proved when after considering the matter before it the Court believes it to exist. It has been overlooked that a fact is also said to be proved when the Court considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The District Judge has very forcibly set out the circumstances which, in his opinion, show that, in all human probability, the tenants paid rent at a rate higher than Rs. 5. He should consequently have held that the fact in question has been proved.
4. As regards the second point, the District Judge has apparently held that the case cannot be brought within the first clause of the proviso to Section 29, unless it is proved that the whole of the amount payable at the enhanced rate has been actually realised by the landlords from the tenants. That clearly is not the intention of the Act. If two elements are proved, namely, first, that there was an ageeemant to pay rent at Rs. 6-8, which is higher than the previous' rate of Rs. 5 a bigha, and secondly, that rant has been pud at a higher rate than Rs. 5, the inference follows that the requirements of the section have been fulfilled, In these circumstances, we must hold, upon the facts found in the judgment of the District Judge, that the contract for enhancement of rent from Rs. 5 to Rs. 6-8 is operative between the parties.
5. As regards the second question, namely, the enhancement of rent under Section 30 (c), we may state that in the view we take of the first question, it is not necessary for us to deal with it in detail. But we may add that the judgment of the District Judge is assailable in second appeal even in respect of that matter. The District Judge has held that the cost of the improvement by the landlord was Rs. 5 per bigha, and has, on this ground, allowed the plaintiffs a decree at the enhanced rate of Rs. 5-10 per bigha. He has not stated explicitly the process of reasoning which led him to this conclusion. But it has been suggested-and the suggestion seems plausible-that he has added the 10 annas as fair interest on the sum spent by the landlord to carry out the improvement. This ignores the fact that the landlord would be entitled to rent at the enhanced rate only so long as the improvement might last, and that a time must come when the rent would have to be reduced to the original rate. The consequence would be that if the landlord were allowed nothing beyond fair interest on the capital invested for the purpose of the improvement, his capital would be lost to him after the lapse of a few years. Consequently, the enhancement should include a sum in addition to the interest payable upon the capital spent. Then, again, as the tenants agreed to pay Rs. 6-8 a bigha, in consideration of the improvement, that may be taken, prima facie, as their own estimate of what would be fair rent under Section 30 (c); and the Court might well adopt this as the basis for a decree till, at any rate, the tenants showed that their estimate was erroneous. But, as we have said, it is not necessary for us to develop this aspect of the case, because the plaintiffs are entitled to rent at the contract rate of Rs. 6-8 per bigha for the years mentioned.
6. Attention may here be drawn to the effect of the second clause of the proviso to Section 21, which makes Clause (b) (whereby the amount of enhancement is limited to two annas in the rupee on the rent previously payable) applicable only to cases where no improvement has been effected by the landlord at his expense. Where, as here, such improvement has been effected, an agreement for enhances merit of rent at more than two annas in the rupee is valid. But this enhanced rent can continue only so long as the improvement exists and substantially produces its estimated effect in respect of the holding. Thus, although we allow the plaintiffs to realise rent from the defendants at the enhanced rate for the years in suit, in any subsequent suit for. rent, it would be open to the tenants to establish, if possible, that rent should not be decreed at the enhanced rate, because the improvement either no longer exists or does not substantially produce the estimated effect in respect of the holding. It is obviously just that if the improvement has ceased to exist in part only, there should be a corresponding reduction in the enhanced, rent.
7. As regards the appeals by the tenants we are of opinion that this is a case where damages should not be decreed. There has obviously been a long standing dispute between the parties, and if the tenants have failed to pay rent regularly, they' alone cannot be held responsible; the landlords, on their part, put forward a claim for enhanced rent at the rate of Rs. 9 and that case has completely broken down.
8. The result is that this appeal is allowed, and the decree of the District Judge varied. There will be a decree in favour of the plaintiffs for rent, in respect of the years in suit, at the rate of Rs. 6-8 per bigha. The rent in arrears will carry interest at Rs. 12-8 per cent, per annum up to the date of the institution of the suit. The amount decreed will carry interest at 6 per cent, per annum. The parties will pay their own costs throughout the litigation.
9. This judgment will govern Second Appeals Nos. 3630, 3631, 3632, 3633, 3634, 3635 of 1912 and 580' of 1913 preferred by the landlords, as also Second Appeals Nos. 3595, 3596, 3597, 3598, 3600, 3601 and 3603 of 1912 preferred by the tenants. In each case, the appeal will be allowed and a modified decree drawn up as above.