1. This matter comes up before us by way of appeal and revision and arises out of proceedings under Section 105 of the Bengal Tenancy Act for settlement of fair rent.
2. So far as the present case (No. 271) is concerned, although the plaintiff applied for additional rent for additional area and also for enhancement of rent, when the matter came up before the Assistant Settlement Officer the latter claim appears to have been abandoned, The Assistant Settlement Officer states as follows: 'In Cases Nos. 271 and 54, the plaintiff claimed additional rents in the plaints but in the rest of the applications they claimed, besides additional rents, enhancement of rent under Section 30(a) and 30(b) of the Bengal Tenancy Act.' The issues framed in the case show that, so far as the present case is concerned, there was no issue as to enhancement of rent. The excess area was found by the Settlement Officer and the excess rent was calculated on a certain basis. In the result, Rs. 65-3-6 was the rent settled.
3. There was an appeal by the plaintiff to the Additional Special Judge. The learned Judge was of opinion that the obvious course was to fix the rent on the principles of Section 7 of the Bengal Tenancy Act and he held that Rs. 128 should be the rent payable by the defendant although the plaintiff claimed only Rs. 98. We think that the learned Judge was wrong in enhancing the rent, with reference to the provisions of Section 7 of the Bengal Tenancy Act. The question whether the rent should be enhanced or not was not gone into by the Court of first instance. As pointed out above, the only question set out in the beginning of the judgment of that Court was what was the additional rent for the additional area.
4. It is pointed out by the learned Counsel on behalf of the respondent that the Assistant Settlement Officer did, as a matter of fact, consider the assets of the tenure in the present case and that, therefore, it must be taken that he considered the question whether the rent of the defendants should be enhanced; and that, although no reference to Section 7 of the Bengal Tenancy Act was made in the plaint, it was sufficient for the landlord to pray for settlement of fair and equitable rent and to state the grounds upon which the alteration of rent was claimed.
5. But if the Assistant Settlement Officer considered the question of assets for the purpose of enhancement of the rent, he was wrong in doing so, because, having regard to the manner in which the case was treated in the Court of first instance, and having regard to the issues, the defendants had no opportunity of adducing evidence on the point whether the rent should be enhanced.
6. We think, therefore, that the learned Special Judge ought not to have considered the question of enhancement but should have confined himself to the question of fair and equitable rent having regard to the provisions of Section 52 of the Act.
7. We may mention that a batch of second appeals from the decision of the same Special Judge came up to this Court and there also in the original application, enhancement was claimed on a two fold ground, namely, first, additional rent was claimed for excess area and, secondly, rent was claimed at a higher rate than that paid by the defendants on the ground that they paid at a lower rate than was paid by other tenants for adjoining lands. But when the case came before the Assistant Settlement Officer, the claim for enhancement (i.e., the second ground) was abandoned and the claim was restricted to additional rent for excess area. There, also, the plaintiff appealed against the decision of the Assistant Settlement Officer, who made a decree for additional rent for the excess area to the Special Judge, and the latter increase the rent as assessed by the Settlement Officer. This was rot merely on the ground that the additional rent was payable in respect of excess lands but also that rent was payable at a higher rate than was paid by the tenants. It was observed by Mookerjee, A.C.J. (Fletcher, J., agreeing) that 'the proceedings must be taken on the basis that the rent for the original area was to remain unaltered.' We think that the observations apply to this case also.
8. We ought to mention that another ground was taken on behalf of the appellant, namely, that the appeal to the lower Appellate Court abated by reason of no substitution having been made within six months of the death of the respondent. The Court below has decided the question in favour of the plaintiff, and, although the observations made by the Judge are open to criticism, we think it was open to him to come to the conclusion at which he arrived, upon the affidavit and other evidences in the case.
9. The decree of the lower Appellate Court is reversed and the case is sent back to that Court in order that the learned Special Judge may assess the additional rent; for additional area without taking into consideration any question of enhancement of rent