Wort, Actg. C.J.

1. These are Letters Patent appeals from a decision of Jwala Prasad, J., which arose out of actions for the enhancement of rent. Letters Patent Appeals Nos. 93, 100 and 101, are by the landlord against the decision of Jwala Prasad, J., in which he held, on the construction of certain sanads, that the rents were fixed in perpetuity.; The other appeals which, are now known as Letters Patent Appeals Nos. 94 to 99 were disposed of by the learned Judge who held that the decisions were decisions of facts but no application was made at the time by the learned Advocate on behalf of the tenants for leave to appeal to this Court. Leave is now granted and it is requested that these appeals should be dealt with along with the landlords appeals to which I have referred. One small technical objection was taken formally, namely, that proper petitions were not filed in all these appeals. But 1 hip quite clearly was due to a misapprehension as to the rule with regard to leave to appeal from the decision of a Single Judge and as there was a petition which incorporated all the defendants appeals with all the parties we think it is a somewhat technical objection and as the point is one of limitation the time will be extended under s.5 of the Limitation Act. Mr. Murari Prasad on behalf of the landlord respondent has agreed to enter appearance in these appeals, so, in the circumstances, they can be dealt with by the judgment which I am delivering in appeals No. 93, 100 and 101.

2. Now as regards the three appeals Nos. 93, 100 and 101, the decision depends upon, a proper construction of three sanads which had been filed in the suits by the tenants. It is with same considerable diffidence that I express my view on this matter as the case was made to depend upon the meaning of a vernacular term which Jwala Prasad, J., was necessarily more acquainted with it than I am, but I am emboldened to express the view first, by reason of the fact it is my duty to do so, secondly, because the learned Judge based his judgment very largely upon the meaning of the term given in Wilsons Glossary of words. The expression which had to be construed was waguzasht. The sanads, so far as they are material for the purpose of my judgment, were in these terms.

That in Mauza Ahdhrarhari Perg Jabdi within the dehat Milkiat Minhai of myself, you hold from a long time 59 bighas 16 kathas 18 dhurs of Dhanar, Dhit, orchard, Kharhour and pasture, green verdure (Harghasi) lands, the rental payable for which is the 35-8. In respect of that 1 have made a grant (waguzasht) you and your posterity after enjoying the aforesaid lands will pay the rents year after year. So this letter of grant (waguzasht) is written Dated this 13th day of Sawan Sudi 1225 Fal.

2. The learned Judge has stated that in Wilsons Glossary the term "Wagvzasht" means "release from attachment or distraint, relieved from assessment, remitted." Shortly his decision was that as there could have been no case of release from attachment or distraint, the only construction to be placed on the term must be "relieved from assessment", and accordingly held that that meant that the rent, namely, Rs. 35-8 was afixed rent in perpetuity which admitted of no assessment or enhancement. With great respect to the learned Judge I come to a different conclusion. The history of the word, as the learned Judge has observed, indicates, that some claim which has been made by the landlord is remitted or released and indeed in every dictionary and glossary of terms that meaning is emphasised. The same meaning is attached to the word in Fallons Law and Commercial Dictionary where the meaning is given "as withdrawal or removal of attachment" and the second meaning is "a grant". The grantor may have indeed in this case meant simply "grant" in using the term, but it can be seen that it more nearly indicates certain circumstances Hinder which the landlord was laying a claim of a kind to the land which by the grant he intended to remit or release. That tenement will also indicate that the proper construction to be placed on the word depend s very largely upon the circumstances under which the grant or waguzasht was made. We are entirely ignorant of those circumstances iii this case but we have one fact which, it seems to me, throws some light upon the matter. The Record of Rights was prepared in the year 1900. The tenants for reasons best known to themselves, did not produce these sanads on that occasion; and although it may be that there was no one alive at that time who could have stated what the circumstances, under which the grant was made in the year 1825 were, get there must have been persons alive who had that information passed down to them. In a sense of course, this is a mere speculation, but this much ma be said that the year 1900 was much nearer the date upon which the sanad was executed and in those circumstances it is rather important to notice what I have already stated, namely that the tenants did not produce these sanads. It may be in the circumstances an indication that they themselves did not look upon the Sanads as entitling them to claim the lands that were granted with rents fixed in perpetuity. The reason in itself may be insufficient to come to a conclusion contrary, to that at which the learned Judge had arrived; that it seems to me that the matter is concluded by looking at the document which admittedly has been translated grain metrically and noticing the context, The sentence used is in respect of "that I have made the waguzasht". The sentence comes immediately after the words "rent reserved" but before that is the statement "you hold from a longtime 50 bighas 16 kathas and 1 dhurs of dhanar, bhit, orchard etc. the rental payable for which is ho. 35 8-0. In respect of that I have made a waguzasht "It is admitted rent is paid and has been paid continuously, therefore, on any grammatical construction of those sentences, it is clear that the release or assessment could not have related to the rent but could have related merely to the lands. That in itself, in my judgment, is a sufficient indication that what the grantor was expressing was that some claim formally made to the lands by him was released by this sanad. If that be the correct" reason, and it seems to be so it is quite clear that the rent for these holdings could not be said to be fixed. I have expressed that view with some diffidence hut I have stated my, reasons for doing so. This decision leaves the matter open to the landlord in those circumstances to claim his enhancement.

It is admitted by the respondents that the landlord is entitled to enhancement u/s 30(6) of the Bengal Tenancy Act. The District Judge in remanding the case on other points has decided that the enhancement u/s 30(6) should he at the rate of 3 annas 6 pies in the rupee which under this judgment the landlord would be entitled to claim.

3. The other appeals which we now admit and hear, were decided, as I have stated, in the Court below by the finding that the decision was a decision of fact, It is admitted again in this case that the landlord is entitled to enhancement u/s 30(6). The question which arises is whether he is also entitled to enhancement u/s 30(a). This matter can be dealt with quite shortly by reference to a statement made by the learned District Judge in the course of his judgment in which he remanded the case to the learned Munsiff. The learned Munsiff, in considering this matter in a somewhat elaborate judgment, came to the conclusion after considering the report of the Commissioner, that there was no prevailing rate. The learned Judge in remanding the case, had made this statement:

The rates found by the Commissioner therefore for the entire village cannot be adopted for enhancing the rents of the defendants holdings u/s 30(b) of the Bengal Tenancy Act. Hut it also appears from the report of the Commissioner that some other blocks of the said two villages are comprised of lands which are similar to the land of the defendants holdings and the Commissioner should therefore have found out the prevailing rate at which rent was paid by the majority of tenants holdings lands in the said blocks.

4. It is said that the Commissioner, at any rate, was influenced by a decision in the case of Brij Behari Singh v. Sheo Sankar Jha 39 Ind. Cas. 8 : 2 P.L.J. 124 : 1 P.L.W. 434 : (1917) Pat. 108 in which at page of 2 P.L.J.-Ed. 129 this direction was given:

If no one prevailing rate can be found in any village then to ascertain what is the lowest rate paid by lands of similar description with similar advantages.

5. It is said that is contrary to a recent decision of this Court by Courtney-Terrell, C. J., and James, J., being the case of SriRadha Krishnaji v. Harlcharan Ahir 126 Ind. Cas. 297 : 11 P.L.T. 385 : AIR 1930 Pat. 334 Ind. Rul. (1930) Pat. 604 : 9 Pat. 803 which decided that:

where no prevailing rate is found in the village or in a neighbouring village, the landlords Claim under a Section (a) should be dismissed and no enhancement can be granted on the basis of the lowest rite paid by the majority of the raiyats for similar land or the average rate of land by applying the principle laid down in Section 31(a) of the Bengal Tenancy Act.

6. It is admitted in this case that Section 31(a) does not apply, but it is also clear that Section 31(f) does apply as it has been held in this case that the holdings were held at a lump rental and therefore, it became the duty of the Court to decide what the enhancement should be by ascertaining the different classes of land comprised within the holding and then applying to the area of each class, the rate paid on that class within the village or neighboring villages. What the learned Judge has done in this case, as will be seen from the passage to which I have just referred, is that he has applied Section 30(a) or part of it which provides for a case where the rate paid by t he raiayts is below the prevailing rate paid by occupancy raiayats for land of a similar description and with similar advantages in the same village or in neighboring villages. It is unnecessary, in my judgment, to decide whether there is a definite conflict between the two cases which I have quoted, first by reason of the fact that it depends entirely in which way the direction in Brij Behari Singh v. Sheo Shankar Jha 39 Ind. Cas. 8 : 2 P.L.J. 124 : 1 P.L.W. 434 : (1917) Pat.108 is read. If it is read as meaning that the Court is entitled, where no prevailing real in the village is found, to take some isolated plots in the village, being lands of a similar character to the lands in dispute and then to take the rate at which those plots are let out and to apply that ate to the lands in dispute, then the direction would be wrong. It seems from the case which is before us that what the learned Judge had in his mind was that, although the Commissioner and the Munsif had decided that there was no prevailing rate, yet the learned MuDstf cQuld lcok for land of a sjmilar character to the land in dispute in the adjoining village although that land may have been only a small proportion of the village anti not the greater pai t of it, and to apply the rate of those plots of land to the lands the subject-matter of the action, it is obvious that no such procedure is warranted under the provisions of the Bengal Tenancy Act. In short as the learned Judge of the trial Court, hap clearly come to a decision on the basis of the Gprnmissioaers report that there was no prevailing rate, it disposes of the landlords claim u/s 30(a) of the Bengal Tenancy Act. For the reasons I have given appeals Nos. 93, 100 J01 of 1932 are allowed. The decrees allowing enhancement u/s 30(6) will stand in each suit.

7. Appeals Nos. 91 to 99 of 1932 are also allowed.

8. There will be no costs in these appeals throughout.

Kulwant Sahay, J.

9. I agree.