1. This is an appeal on behalf of the defendants in a suit for enhancement of rent of a tenure. The litigation has now lasted for over seven years and the plaintiffs-respondents have met with varying fortune at successive stages. In the Court of first instance, a decree for enhancement was made in their favour to the extent of Rs. 199-12. Upon appeal, the District Judge dismissed the suit on the ground that the property in question was not a tenure but an occupancy-holding. Upon appeal to this Court, the case was remanded. The District Judge has after remand made a desree in favour of the plaintiffs for enhancement to the extent of Rs. 906. On the present appeal by the defendants, it has been contended, first, that the disputed property is an occupancy-holding and the rent cannot be enhanced under Section 7 of the Bengal Tenancy Act; secondly, that if the disputed property is a tenure, the rent is not liable to be enhanced, because its history indicates that the rent was fixed in perpetuity; and, thirdly, that if the rent is enhanceable, the enhancement which has been decreed is neither fair nor equitable.
2. In so far as the first of these questions is concerned, there is, in our opinion, no substance in the contention of the appellants. The tenancy was created so far back as the 2nd November 1817. No document of that date, however, is forthcoming, and the precise purpose for which the lease was granted cannot be ascertained from direct evidence. On the 21st October 1843, the tenancy was transferred, and the transfer was recognised by the landlords. On the 12th August 1848, a quantity of land was added to the tenancy, but the rent was assessed at the same rate as in 1817. On the 20th May 1863, there was a re-settlement; the land was classified and the rent was assessed at a rate higher than that of 1817 and 1848. In 1883, additional rent for excess land was successfully claimed by the landlord; for first class land, rent was assessed at the same rate as in 1863 while for second class land, rent was assessed at a lower rate. The area included in the tenancy in 1817 was more than 100 highis and the land now in the occupation of the defendants is said to exceed a thousand bighas. Under these circumstances, the District Judge has held that Section 5 Sub-Section (5) of the Bengal Tenancy Act is applicable and the landlords start with a presumption in their favour that the position of the defendants is that of tenure-holders. The learned Vakil for the appellant, has, however, in the course of his careful and exhaustive argument, contended that the history of the tenancy subsequent to the creation thereof indicates that the land was used by the defendants as agricultural raiyats. It may be conceded that, as was laid down by this Court in the cases of Pramotha Nath Kumar v. Nilmoni Kumar 14 C.L.J. 38 : Ind. Cas. 431 : 15 C.W.N. 902 and Promoda Nath Roy v. Asir-ud-din Mandal 15 C.W.N. 896 : 11 Ind. Cas. 262 where the terms of the original grant are ambiguous or the terms upon which the tenancy was created cannot be proved by direct evidence, the subsequent conduct of the parties may be considered with a view to determine the nature of the tenancy. The District Judge, however, has found upon the evidence that a considerable portion of the laud has been brought under cultivation, not by the defendants but by the tenants settled by them on the land, and from this circumstance he has drawn the inference that the defendants have treated themselves as tenure-holders rather than as occupancy raiyats. In our opinion, the view adopted by the District Judge is well founded, and that the circumstances upon which he relies justify the inference that the defendants are tenure-holders and that the tenancy in its inception was created for agricultural purposes. Durga Prosonno v. Kalidas 9 C.L.R. 449; Laidley v. Gour Gobind 11 C. 501. The first contention of the appellants must consequently fail.
3. In so far as the second contention of the appellants is concerned, it has been argued, upon the authority of the decision in Robert Watson & Co. v. Radha Nath Singh 1 C.L.J. 572 that the rent must be assumed to have been fixed in perpetuity. Reference has also been made to the cases of Golam Ali v. Gopal Lal Thakur 9 W.R. 65; Soorasoondaree v. Golam Ali 15 B.L.R. 125 note : 19 W.R. 141 and Huro Prasad v. Chundee Churn 9 C. 505. Stress has been laid upon the fact that the tenancy here was created for the purpose of reclamation that it was not limited in duration, that it descended from father to son and from son to grandson, that the rent fixed upon the excess land at one stage was based on the initial rent, that the rent was progressive, and, that on one occasion, at any rate, a transfer by the tenant was recognised by the landlord. Reliance has also been placed upon the circumstance that in 1864 the tenants professed to be permanent tenure-holders and executed a permanent sub-lease which is still in force. We are of opinion, however, that these facts are of no assistance to the appellants, because it has been conclusively proved that in one instance, that is, on the 20th May 1863, the rent was enhanced, and the enhanced rent has been hitherto paid without protest. The inference which might legitimately be drawn from the other circumstances in favour of the fixity of rent, has thus been completely negatived by proof that the rent was on one occasion enhanced and that the tenants submitted to such enhancement. The view of the District Judge that the rent has not been fixed in perpetuity and is enhanceable, is clearly well founded and must be upheld.
4. In so far as the third ground urged by the appellants is concerned, we are of opinion that the appeal must be allowed, as the District Judge has not given effect to the provisions of Section 7 of the Bengal Tenancy Act. Sub-section (1) of that section provides that the rent of a tenure-holder liable to enhancement may be enhanced up to the limit of the customary rate payable by persons holding similar tenures in the vicinity. No customary rate has been proved in this case, and this aspect of the case need not be further considered. Sub-section (2) provides that where no customary rate exists, the rent may subject to any contract between the parties, be enhanced up to such limit as the Court thinks fair and equitable. Sub-section (3) then lays down that in determining what rent is fair and equitable, the Court shall not leave to the tenure-holder as profit less than ten per centum of the balance which remains after deducting from the gross rents payable to him, the expenses of collecting them and shall have regard to (a) the circumstances under which the tenure was created, for instance, whether the land comprised in the tenure or a great portion of it was first brought under cultivation by the agency or at the expense of the tenure-holder or his predecessor-in-interest, whether any fine or premium was paid on the creation of the tenure, and whether the tenure was originally created at a specially low rent for the purpose of reclamation; and (b) to the improvements, if any, made by the tenure-holder or his predecessor-in-interest. In the case before us, the land comprised in the tenure has been brought under cultivation by the agency and at the expense of the tenure-holder or his predecessor-in-interest; but there is no evidence to show that any fine or premium was paid on the creation of the tenancy, nor, so far as we can gather, is there evidence to show that the rent originally fixed was specially low inasmuch as the tenancy was created for the purpose of reclamation. The Court has also to take into consideration the fact that improvements have been affected on the land by the tenure-holder or his predecessor-in-interest. Sub-section (4) finally provides that if the tenure-holder himself occupies any portion of the land included in the area of his tenure or has made a grant of any portion of the land either rent-free or at a beneficial rent, a fair and equitable rent shall be calculated for that portion and included in the gross rents aforesaid. In the present case, as we have already stated, a sub-lease was granted by the defendants or their predecessors-in-interest on the 15th June 1864. The plaintiffs contended that this sub-lease is fictitious. Upon this aspect of the case, we have no express finding by the District Judge. If the lease was not fictitious and if the rent was not beneficial, under Sub-section (3), the landlords would be entitled to a fair and equitable rent on the basis of the rent payable to the defendants, under the sub-lease of the 15th June 1884. On the other hand, if the sub-lease was fictitious and had been granted at a beneficial rent, the plaintiffs would be entitled to call upon the Court to assess fair and equitable rent on the basis of the collections made from the land. The case has not been considered from the various points of view just indicated. Besides, the profit left to the tenure-holders, is, under the circumstances of the case, not sufficient. The decision of this Court in the case of Ram Kumar Singh v. Messrs. Robert Watson and Co. 9 C.W.N. 334 shows that a Court may, if the land has been improved at considerable expense by the tenure-holder himself, leave him a profit of as much as 40 per cent. though in Hem Chunder v. Kali Prosunno 8 C.W.N. 1 : 30 C. 1393 : 30 I.A. 177 only 20 per cent, had been left as the profit of the tenure-holder. The position is that the rent has been enhanced from Rs. 500 to Rs. 1,425; in other words, the rent as settled is nearly three times the rent now payable by the tenure-holders. Enhancement to this extent cannot be justified; and the matter requires careful investigation.
5. The result is that this appeal is allowed, the decree of the District Judge set aside, and the case remanded to him in order that the question of the extent to which the rent should be enhanced may be determined afresh. The District Judge will be at liberty to take fresh evidence upon any point in controversy between the parties, such evidence to be taken either by himself or under his direction by the Subordinate Judge. The costs of this appeal will abide the result.