1. In these appeals the landlord objects to the order of the learned Special Judge disallowing his claim for enhancement of rent under Section 7, Bengal Tenancy Act. The learned Judge has found that the appellant has not adduced any evidence to show what is the customary rate payable by persons holding similar tenures in the vicinity. He then proceeds to consider whether the appellant is entitled to enhancement of rent under Sub-section (2) of Section 7. In two of these cases he gays that the claim should fail simply because no ground for enhancement on equitable considerations, has been made out. In some other cases he finds that there are some lands in the khas possession of the tenure-holders, and, therefore, the landlord is apparently entitled to enhancement of rent on the ground of rise in the price of staple food crops; but as the kabuliyats mention only one ground of enhancement, namely, when the rent payable by the tenant is below the prevailing rent in the neighbourhood, the learned Judge disallowed the plaintiff's claim for enhancement of rent also in respect of the lands in the possession of the tenants. It is not necessary to consider the observation made by the learned Judge with regard to the stipulation in the kabuliyat because his finding that the appellant has riot adduced any evidence to show what the customary rate is, disentitles the appellant from claiming any enhancement under Section 7, Bengal Tenancy Act. In some of the cases of this group which we have decided we have observed that the landlord in order to claim the benefit of Section 7(2), must prove that there is no customary rate; and if he asserts that there is such a customary rate but fails to prove it, he is not entitled to ask the Court, to determine a fair and equitable rent. The claim of the appellant, therefore, for enhancement of rent under Section 7, Bengal Tenancy Act, must fail.
2. The learned Vakil for the appellant asks for permission to withdraw the suits or the claim for the enhancement of rent on payment of all costs to the other side with liberty to bring fresh suits on the ground that it was on account of a mistaken view of the law that the appellant's claim has failed. We do not think that it is a sufficient ground for our giving the permission asked for under Order XXIII, Rule 1, and we do not think that such permission ought to be granted in second appeals.
3. These appeals, therefore, fail and are dismissed with costs one gold mohur each.
4. I agree.