1. This is an appeal by the defendants against a decision of the Sub-ordinate Judge modifying a decision of the Munsif. The material facts are as follows
2. The plaintiffs sued to recover from the defendants rent at the rate of Rs. 146 odd in respect of the defendants holding.
3. The defendants holding originally consisted of 68 bighas of land and the rent payable in respect of these 68 bighas was a sum of Rs. 78 odd. Subsequently according to the findings of the lower Appellate Court an area of some 21 bights was added to the defendants original holding and the plaintiffs' case is that a new settlement or arrangement was arrived at between them and the defendants whereby, in consideration of the additional area of 21 bighas being added to the original area of 63 bighas, the rent payable in respect of the whole holding of 90 bighas should be Rs. 146 odd, the amount now claimed by the plaintiffs in the suit.
4. The first Court held that the plaintiffs were not entitled to recover this amount of rent inasmuch as their Claim was in violation of the provisions of Section 29 of the Bengal Tenancy Ant and the Court held that, they were only entitled to rent at the rate payable for the original holding that is to say, that in respect of the addition of 21 bighas rent was payable as the rate payable from the original holding of 68 bighas, The decision of the first court was reversed on appeal by the Subordinate Judge who held that the provisions of Section 29 of the Bengal Tenancy Act had no application, inasmuch as a new arrangement or settlement had been arrived at between the parties and that consequently the provisions of Section 29 had no application There were various other grounds stated in his judgment but I do not think that it is necessary to deal with those as the main subject of attention before us has been as to whether the claim of the plaintiffs is in violation of Section 29 of the Bengal Tenancy Act or not, and if it is not it is conceded that the appeal must fail.
5. Now, what is said on behalf of the appellants is that, there is no finding that the additional rent over and above the enhancement allowed by Section 29 is attributable to the added area of 21 bighas and we are asked to remand the case in order that a finding may be arrived at as to whether this is so or not, I do not think that this remand is necessary because, in my opinion, the provisions of Section 2 J of the Bengal Tenancy Act have no application to the facts of this case, I think open the findings of the lower Appellate Court, which are perhaps not so clear as they might hare beer, there is a finding that upon the defendants taking settlement of the additional 21 bighas, a new arrangement was arrived at and that a new rental of R. 146 was fixed. It is said on behalf of the defendants that this is a colourable infringement of the provisions of Section 29 of the Bangal Tenancy Act if it were I think the appellants would be entitled to succeed for as his been pointed out in the decision of the case of Raj Kumar Sarkar v. Faizuddi Tarafjar 90 Ind. Cas. 283 : 22 C.L.J. 81, you have to consider in each case whether the enhancement of rent claimed is really a colourable infringement of Section 29 or whether it is a new rental arrived at between the parties. If it is the former, then Section 29 would apply and would be a bar to the enhancement of rent claimed. If, on the other hand as appears to be the case here from the facts found that this is not so but that the inclusion of the additional 21 bighas resulted in a new arrangement being arrived at between the parties, then Section 29 of the Bengal Tenancy Act has no application and authority for that proposition will be found in the case to which I have already referred and if further authority is desired it will be found in the case of Satish Chandra Giri v. Kdbiraddin Mallick 26 C. 233 : 13 Ind. Dec. (N.S.) 753. At page 234 appears the argument of the learned Vakil who appeared for the appellant in that case. He argued that there had been an increase of rent on account of an increase in the area of the holding and consequently Section 29 of the Bengal Tenancy Act did not apply. In the judgment of the Court at page 235 the learned Judges remark it is argued that Section 29 applies only to an increase in the rate of rent, and not to an increase in the amount of rent by reason of increase of the area and then, later on, the learned Judges say, we are of opinion that this contention is correct. Section 29 of the Bengal Tenancy Act applies only to cases of increase in the rate of rent, which is ordinarily designated Enhancement of rent, In the result in that case, a remand was necessary to ascertain whether an increase in the rent was due to an increase in the area. but that does not affect the statement of law laid down in the judgment to which I have already referred.
6. There is only one other case to which I need refer that is the case of Sonaulla Sardar v. Bhagabati Debya choudhurani 48 Ind. Cas. 35 : 28 C.L.J. 142, The learned Vakil for the appellants contended that this was an authority in support of the proposition for which he contended. But I do not think that on an examination of the facts of that base that this contention is correct. The original holding in that case was 71/4 bighas and it was subsequently found on. a fresh survey that the area was 91/2 bighas An increased rent was paid in respect of this increased area. Now, in that case the claim of the landlord for rent at the rate at which he claimed was disputed as being an infringement of the provisions of Section 29 of the Act and this contention was upheld. But it appears to ma that there is nothing in that case to show that the original holding did not consist of the area of which it was found to consist, upon a fresh survey being made and accordingly in that case it see ns to me that the rate of rent was fixed for the holding whatever its area was at the time of the demise and that accordingly Section 29 applied. But the present case is entirely different from that case. Here, as I have already stated, you have an additional holding of 21 bighas and a fresh arrangement arrived at between the parties for increase of rent.
7. The appeal fails and it must be dismissed with costs.