1. This appeal arises out of a suit for rent. The plaintiffs claim rent at the highest prevailing rate in accordance with the terms of a kabuhyat executed by the defendants. The defendant No. 1 filed a written statement, denying among other things that the quantity of land for which rent was claimed was correctly stated in the plaint and also denying the correctness of the rate of rent prevailing in the locality. When the case came on for hearing the defendants were found absent. Evidence was taken ex parte and after considering the report of a Commissioner who was appointed to measure the land, an ex parte decree was made in favour of the plaintiffs.
2. The defendant No. 1 appealed against the decree of the first Court and the learned Subordinate Judge on appeal modified the decree of the first Court. In the first place he held that the highest prevailing rate was not proved and accordingly he decreed rent at the rate of Rs. 1-12 0 per bigha which was the original rent reserved in the kabuliyat. As regards the quantity of land upon which rent was assessable, the lower Appellate Court held that certain embankments should be excluded.
3. Three points have been raised in appeal before us by the learned Vakil for the plaintiffs appellants. The first is that some of the defendants had compromised the case with the plaintiff and the Court below was wrong in not giving effect to such compromise.
4. The second point urged is that the highest prevailing rate had been proved by the evidence of the plaintiffs themselves who were not cross-examined and there was no rebutting evidence.
5. The third point was that the embankment being made for the improvement of the holding, rent should have been assessed on the area covered by the embankment.
6. As regards the first point it seems to us that in a rent suit, rent cannot be decreed at different rates against different tenants who hold undivided shares of the land and are jointly liable for rent, and the Court below was justified in not giving effect to a compromise which did not fix the rent for the whole holding payable by all the tenants.
7. As regards the third point there is no ground for holding that the embankment should be considered as land of the tenancy assessable at the rate contracted for in the kabuliyat. If the embankments are improvements, the landlords may in a properly constituted suit claim enhancement on the ground of such improvement but they cannot have rent assessed on the embankments.
8. As regards the second point which seems to us to be the most important point in the case, we think that in the interest of justice the plaintiffs should be given an opportunity of adducing further evidence to prove the prevailing rate The case was as we have said undefended, and for this reason clearly the plaintiffs contented themselves by giving only formal evidence to prove their case. Only one of the plaintiffs was examined and no further evidence was given. It is true that even in an ex parte case, a plaintiff has to establish bin claim; but in view of the fact that there was no rebutting evidence and that the plaintiffs' own evidence remained uncontradicted, there are grounds for holding that the plaintiffs' were not fairly treated. If the decision of the trial Court was not accepted as it stood, the plaintiffs should have been allowed to adduce further evidence
9. We, therefore, think that the decision of the Court below should be set aside in so far as the question of the prevailing rate is concerned and the case should be remanded to the Court of first instance for fresh trial on that point only.
10. Both parties will be entitled to adduce such further evidence as they may think fit.
11. The costs of this appeal will abide the result.