B. B. Ghose, J.
1. This appeal arises out of an application for settlement of fair and equitable rent with regard to a jama settled with tenants under a kabuliyat, dated the 3lst Chaitra 1318 B. S.
2. Both the Courts below dismissed the suit on the ground that the settlement asked for was of a certain quantity of land within fixed boundaries, and, therefore, the landlords were not entitled to claim additional rent for any excess area.
3. An analogous case was decided by another Bench of this Court of which I was a member. The kabuliyats in both the cases are in similar terms. That case was remanded for the fixing of the area and the rent payable with regard to each class of land according to the terms of the kabuliyat.
4. In Clause 8 of the kabuliyat now in question there is a stipulation for survey being made of the land by the landlords, the tenant undertaking to be present at the survey and assisting in carrying it out. It was also stipulated that if the tenant failed to be present at the survey, he would be bound by the survey made in his absence. Clause (9) of the kabuliyat stipulates as to the standard of measurement and also the rate of rent to be paid per bigha with regard to each class of land, i.e., bastu, udbastu, palan land, paddy land, bagat land etc. It cannot, therefore, be held that the land within the boundaries was let out at a fixed rent, but it was in the contemplation of the parties that there should be a survey and rent should be assessed upon the survey of the lands within the boundaries having regard to the class of land to which each plot falls and its area.
5. The decision, therefore, of the learned Special Judge does not appear to be correct and must be set aside.
6. The case must be sent back to him for settling fair and equitable rent payable with regard to each class of land having regard to the rent payable in the locality.
7. Costs of this appeal will abide the result. Hearing fee one gold mohur.
8. I agree.