James, J.These appeals arise out of three suits for enhancement of rent under the provisions of Section 30(a) and 30(b) of the Bengal Tenancy Act In order to ascertain the prevailing rate in the village, a revenue officer was deputed to make a local enquiry; but he was unable to ascertain what the prevailing rate was. The Munsif of Barh, finding that no evidence had been given on which he could decide what was the prevailing rate in the village, declined to enhance the defendants rent u/s 30(a) of the Bengal Tenancy Act. u/s 30(b) the Munsif found the enhancement was admissible at the rate of four annas in the rupee, and he enhanced the defendants rent to this extent. Both parties appealed to the District Judge of Patna. The landlords appealed claiming that the rent should have been enhanced under Sections 30(a) and 31; but their appeals were dismissed and they now come up in second appeal from" that decision. The tenants appeals against the decree enhancing their rent u/s 30(b) of the Bengal Tenancy Act were allowed to this extent, that the enhancement was reduced to two annas in the rupee. The landlords appeal from that decision of the District Judge; and cross objections have been preferred by the tenant-defendants against the appellate decrees which enhanced their rent at the rate of two annas in the rupee

2. Mr. C.C. Das on behalf of the landlord-appellants argues in the first place that the lower Courts have treated the question of the ascertainment of the prevailing rate from a wrong standpoint. The learned District Judge remarks that although lands are classified and assessed according to their class in the Sonthal Parganas, and other hilly portions of this Province, there are no prevailing rates to be found in Behar proper. This view appears to be based on the assumption that there can be no prevailing rate unless there are distinct and different classes of land within the same village, and unless these classes are easily to be distinguished But it is not correct to say that there are no prevailing facts in Behar proper. It is true that where soils of different class exist in the same village and facilities for irrigation vary, the existence of lump rentals may make it difficult to ascertain prevailing rates; but the existence of lump rentals does not take any given area out of the operation of Section 30(a), since even if there are different classes of land in the village and lump rent has been assessed, the provisions of Section 31(f) of the Bengal Tenancy Act would apply. To ascertain prevailing rates may in such cases be difficult; but that is another matter. I may point out that the course which should be adopted in order to ascertain prevailing rates was indicated by this Court in Brij Behari Singh v. Sheo Sankar Jha 34 C. 51 : 4 C.L.J. 437 : 11 C.W.N. 20 : 1 M.L.J. 364 (F.B.). But in the suits with which we are here dealing, the Commissioner concluded his report with the statement that

in spite of my best effort I failed to exactly find out the prevailing rate of rent as neither party cared to furnish the necessary data.

3. The plaintiffs made no protest; they made no application for the issue of a fresh commission, and they took no steps to provide the Court with further data from which the prevailing rate might be ascertained.

4. Mr. C.C. Das says that the plaintiffs did not object to this report because the Commissioner had stated that in his opinion the prevailing rate of rent, by which he evidently meant a fair and equitable rate, ought to be seven rupees a bigha. But the fact remains that the Commissioner reported that he was unable to ascertain the prevaling rate, and that no steps were taken for the appointment of a second Commissioner. No application has been made for the appointment of a second Commissioner up to this time, and it is certainly too late to make such an application now, when the case ha-t reached the stage of second appeal.

4. Appeals Nos. 225, 226 and 227 must, therefore, be dismissed.

5. In Appeals Nos. 222, 223 and 224, Mr. C.C. Das claims that the lower Appellate Court ought not to have reduced the enhancement which had been allowed by the Munsif of Barh. The learned District Judge has reduced the enhancement on the ground that the theory underlying the rules laid down in Section 30(b) of the Bengal Tenancy Act is that, an increase in the price of staple food crops benefits the raiyat and enables him to pay a higher rent; and mat in practice this theory is unsound, because the price of cloth and oil has risen with the prices of staple food crops, so that the raiyat has gained no benefit from the rise in prices. The learned District Judge has apparently omitted to notice the concession to the raiyat which is made in Sub-section (b) of Section 30 of the Bengal Tenancy Act; but I should observe that the section as a whole is based not on economic principles but on the legal and historical principles that the landlord is entitled to a certain share of the produce of the holding. In the words of Regulation XIX of 1793 "by the ancient law of the country the ruling power is entitled to a certain proportion of the produce of every bigha of land, demandable in money or kind according to the local custom unless he transfers his right thereto for a term of years or in perpetuity ".

6. In those areas to which the Decennial Settlement applied, the ruling power compounding with the zemindars transferred this right to them; and except where raiyats hold at fixed rates, the landlord is entitled to a periodical revision of rent u/s 30(b) of the Bengal Tenancy Act, not on general economic principles, but because he is entitled to a certain proportion of the produce of the land. The learned District Judge has definitely found that the land of these holdings has not deteriorated, and that though the land is of poor quality, the rent paid is much below average rents in the district. In enhancing rent under Chap. V of the Bengal Tenancy Act, the provisions of Section 35 of thecannot be ignored; but in order to show that a tenant is not liable to pay the enhancement which would be admissible under the rules laid down by Section 32, it is necessary to show that the rent payable by the raiyat is already unduly high, or that the productive capacity of the land has deteriorated through no fault of the raiyat since his rent was settled. In the suits with which we are here concerned, there appears to be no justification for allowing enhancement at less than the full rate admissible u/s 32.

7. The decrees of the lower Appellate Court are accordingly set aside and the decrees of the Munsif are restored. Appeals Nos. 222, 223 and 224 are decreed, and the cross-objections are dismissed. Each party will bear his own costs.

Das, J.

8. I agree.