1. This is an appeal on behalf of the defendants in an action for rent. The plaintiff alleged that the defendants held under her a tenancy of 21 bighas at an annual rental of Rs. 191 created in 1897. The defendants alleged on the other hand that they held 51 bigahs under a tenancy created so far back as the 30th August 1887. According to them, the term of the lease was for a period of 7 years from 1297 to 1302, that since the expiry of the terms, they have been holding over, and that by a subsequent arrangement the rent has been reduced from Rs. 441 to Rs. 191 on the ground that a considerable portion of the lands of the holding has become covered with sand. On these pleadings, the point for determination was stated in the Court of first instance to be, whether the defendants held 21 bighas 15 cottahs at the yearly rental of Rs. 191 with cesses. The Munsiff came to the conclusion upon the evidence that the defendants still held under the lease of 1887, that the lands of the tenancy measured 51 bighas as alleged by them and that the original rental of Rs. 441 had been reduced to Rs. 191. Hence, he held that as the plaintiff did not admit the existence of the jama, of 51 bighas but claimed to realise rent in respect of a jama which had no existence in fact, the plaintiff was not entitled to succeed. The plaintiff then appealed, to the Subordinate Judge who observed, with, reference to the question discussed in the first Court, that it was improbable that the jama was reduced from Rs. 441 to Rs. 191, but that it was unnecessary to enter into this question in the present litigation. In his opinion the determination of the area of the tenancy and of the time of its inception was immaterial for the purpose of the suit, and accordingly he decreed the claim in full.
2. The defendants have now appealed to this Court and on their behalf it has been argued that the question in controversy between the parties ought to have been decided. In support of this contention our attention has been invited to the provisions of Section 148, Clause (b) of the Bengal Tenancy Act. On behalf of the respondent, reliance has been placed upon the decision of this Court in Pijraddi Naskar v. Ambika Churn Mitter 5 C.W.N. 121. In our opinion the question which, arises between the parties to the suit ought not to have been left open. It is not possible to lay down any inflexible rule of universal application, upon the Question whether the precise area of the tenancy should or should not be determined in a suit for rent. The only general principle which can be formulated is that where there is a substantial dispute as to the identity of the tenancy set up by the parties to the suit, the question in controversy must be decided. This view was apparently the foundation of the decision of this Court in the case of Bhaichal Nanya v. Shaikh Shamnuyasi Mahomed 1 C.W.N. 152. In the case before us the plaintiff alleges that the original tenancy, of 1887 has ceased to exist, that upon the expiry of the term, the lands came into occupation of the zemindar and that subsequently a new tenancy was created in respect of a portion only of the lands comprised in the original tenancy. The defendants on the other hand allege that the old tenancy still continues, that they are still in occupation of all the lands originally comprised in the tenancy, and that the rent has been reduced from. Rs. 441 to Rs. 191 as part of the lands has become unculturable. Under circumstances like these, the question in controversy between the parties cannot, in our opinion, be rightly left open, as it will inevitably lead to dispute when the decree for rent comes to be executed. What is the tenancy to be brought to sale? Is it the original tenancy of 1887, as alleged by the defendants or is it the new tenancy of 1897, as alleged by the plaintiff? If the original tenancy still continues, it is not open to the decree-holder to bring to sale only a portion of the lands comprised therein, under the provisions of the Bengal Tenancy Act. Besides what would be the position of the purchaser? Would he be entitled to occupation of 51 bighas or 21 bighas? To avoid future disputes like these between the parties, it is, we think, obligatory upon the Court to decide whether the case made by the plaintiff is true or whether the allegations made by the defendants have been substantiated.
3. The result, therefore, is that this appeal must be allowed, the decree of the Subordinate Judge set aside and the case remitted to him for trial of the question which was set out in the judgment of the Court of first instance as the point for determination between the parties.
4. The costs of this appeal will, abide the result.