Wort, J.

1. This is the landlord's appeal in an action for enhancement under S. 30 (a) and (b), Ben. Ten. Act. So far as Cl. (a) of the section is concerned, the Courts below have not allowed any enhancement because they have come to the conclusion that there was no prevailing rate. I have just listened to a very elaborate argument of Mr. S. M. Mullick and Mr. Rai on behalf of the appellants and of Mr. Mitter on behalf of the tenant-defendants, but in dealing with the case I propose to express myself in as few words as possible. The contention of Mr. Mullick in the first instance was that the learned Judge in the Court below has misdirected himself in law as he appeared to be of the opinion that unless a prevailing rate was in some sense a customary rate recognized as such, an enhancement could not be allowed. On the face of it there would be, if I may say so, some justification for that argument; but on a closer investigation of the judgments of the trial and the appellate Courts and also of the report of the Commissioner it seems to me that the argument is unjustifiable. The matter is not without difficulty. It is not quite clear what the learned Judge in the Court below meant. But I have read the Commissioner's report not for the purpose of coming to any conclusion on facts, but for the purpose of better understanding the judgments with which I have to deal. It is quite clear from an investigation of the Commissioner's report that what the learned Judge in the Court below meant was that the Commissioner's report could not be relied upon because, what the Commissioner had done in fact was to take an average of the rents paid for a certain class of land in the village and that an average rent could not be the prevailing rate of rent within the meaning of S. 30, Cl. (a) of the Act.

2. To take a case in point the Commissioner appears to have divided the lands into various classes naming them as certain schedules. Taking the case of Sch. A, there were something like 340 tenants of that particular class of land, and they were in fact paying rents for that class of land, enjoying the same privileges, at rates varying from 11 annas to Rs. 15-12-0. It is almost unbelievable, but that is the fact. In looking through the schedule which the Commissioner annexed to his report and all the different rates of rent, varying as they were, it could not possibly be said that any one rate was a prevailing rate. There were instances of as many as eight or nine tenants paying the same rate of rent. But when we take 340 tenants occupying almost about the same number of big has of land of the same quality, it cannot be said that there was a prevailing rate within the meaning of 8. 30, Ben. Ten. Act. The Commissioner has taken Rs. 4-12-0 as the prevailing rate for that class of land, but exactly how he arrived at that figure it is impossible to say unless he commenced from the end of his schedule going backwards till he got majority of tenants, taking a lowest rate paid by them and fixing that rate as the prevailing rate. Even that does not conform with Cl. 3, of the rules laid down in the decision which the Commissioner states he followed - the decision in 2 Pat L J 124 Brij Behari Singh v. Sheo Sankar Jha, 1916 Pat 120 = 39 I C 85 = 2 Pat L J 124. Towards the end of his judgment the late Mullick, J., said in stating the rules to be followed:

If no one prevailing rate can be found in any village, then to ascertain what is the lowest rate paid by land of similar description with similar advantages.
3. I am not prepared to say that the rule is justified on any construction of S. 30, Ben. Ten. Act. But it is a case which has never been overruled for the very reason that no Bench having any power to overrule the decision has ever been constituted. The case has been commented upon and referred to in a number of other cases and I propose to refer to them in passing. They are the decisions in 10 P L T 693 Kamala Prasad Singh v. Bankey Prasad Singh, 1929 Pat 702 = 124 I C 390 = 10 P L T 693, 11 P L T 335 Sri Radha Kishunji v. Hari Charan Ahir, 1930 Pat 332 = 126 I C 297 = 9 Pat 803 = 11 P L T 335, 13 P L T 244 Bindeshwari Prasad v. Nanhku Mahton, 1982 Pat 179 = 139 I C 537 = 11 Pat 557 = 13 P L T 244. and 14 P L T 645 Kameswar Singh v. Soney Misser, 1933 Pat 529 = 148 I C 1199 = 14 PLT 645. The learned Judge in the Court below has come to the conclusion that the decision reported in Vol. 2 Patna Law Journal (1) has been overruled. For the reason I have already stated that is an impossible proposition. When a Bench is properly constituted for the purpose, the case may be considered from that point of view. Having regard however to the point in question, as the Courts below have come to the conclusion that there was no prevailing rate owing to the method which was adopted by the Commissioner, it seems to me that it is impossible for this Court in second appeal to interfere. The second question related to enhancement under Cl. (b), S. 30, Ben. Ten. Act. An enhancement of 1 anna has been allowed although it was in the first instance decided by the trial Court that the landlords would be entitled to an enhancement at the rate of 3 annas 9 pies per bigha. This has been reduced by applying the decision of the Full Bench of this Court. The Court of appeal below has been of the opinion that the learned Munsif was not wrong in fixing the rate of enhancement at 1 anna having regard to the economic depression. It is contended that even in the Full-Bench decision of this Court the principle relating to the economic depression does not apply for the reason that the rent was low, and I am pressed to come to a similar decision. In the circumstances however I do not propose to interfere.

4. The appeal is dismissed with costs. This decision will govern Second Appeals Nos. 582 to 589 of 1934. Having regard to the difference of opinion expressed particularly with regard to Cl. (a), S. 30, Ben. Ten. Act, I propose to give the appellants leave to appeal under the Letters Patent.