1. These seven appeals are by the tenants. Appeals Nos. 2065, 2066 and 2067 raise questions similar to those ihat were urged in Second Appeal No. 287 of 1922. In view of our judgment in that case these appeals fail and are dismissed with costs, one gold mohur in each case.
2. In the next group of appeals (Nos. 2068 to 2071) the question raised is that the learned Special Judge was not legally justified in enhancing the rent of the tenants under S. 7, Bengal Tenancy Act. The finding of the learned Judge is that the plaintiff has failed to prove the existence of a customary rate payable by persons holding similar tenures in the vicinity, and hence the plaintiff cannot claim any enhancement under the provisions of Sub-section (1) of Section 7. He must, therefore, make out a case for enhancement which appears to be fair and equitable. This observation shows that the plaintiff having failed to establish the existence of a customary rate the Court is to proceed under Sub-section (2) of Section 7 to determine the limit up to which the enhancement is judged to be fair and equitable by the Court. This view is wrong in law as has been held in the case of Jogesli Gkandra Boy v. Izzal Ali A.I.R. 1925 Oal. 454 following the case of Midnapore Zamindari Co. v. Sridhar Makata A.I.R. 1922 Oal. 152. Before a Court can take action under Sub-section (2) it must be definitely found that no customary rate exists. The finding that the plaintiff has failed to prove the customary rate is not sufficient to give jurisdiction to the Court to proceed to determine to what extent the rent should be enhanced under Clause (12). We accordingly think that the judgment of the lower appellate Court is wrong and on this point it must be set aside. Several other questions in connexion with the mode of enhancement adopted by the learned Judge have been raised and in view of what we hold OW the first question, namely, that on the finding arrived at by the learned Judge he is not entitled to enhance the rent of the appellant, the other questions do not arise and need not be considered.
3. The respondent landlord urges by way of a preliminary objection that in cases like the present no appeals lie presumably under S. 109-A. That section bars an appeal to this Court against a decision settling rent. In Second Appeal No. 287 of 1922 we have held that that portion of the decision of the lower appellate Court which fixes the rent payable by the ten-ant is not appealable ; and if the question raised in these appeals was only as to the amount of the rent fixed by the Court below the appeals would have been incompetent. But in these cases the question raised is beyond the purview of 01. (3) of S. 109, Bengal Tenancy Act. The question raised relates to the competency of the Court to settle rent which is very different from a decision settling the rent. We think that the appeals lie in these oases ; and this question has always been considered in second appeals as will be apparent from the ruling already referred to.
4. The result is that Second Appeals Nos. 2068 to 2071 of 1922 are allowed, the decrees of the Special Judge allowing enhanced rent in cases of khatians involved in these appeals will be set aside with costs one gold mohur in each case.