Kulwant Sahay, J.Three suits for arrears of rent were instituted by the plaintiffs and there was also a prayer in the plaint for enhancement of rent u/s 30(b), Ben. Ten. Act. The learned Munsif gave a decree to the plaintiffs for arrears of rent and allowed the enhancement at the rate of three annas three pies in the rupee.

2. The defendants appealed to the Subordinate Judge and the only point raised before him was whether the landlord was entitled to enhancement on the ground of rise in price of staple food crops when the holding was not producing food crops but had been converted into an orchard. The learned Subordinate Judge, relying upon a decision of a single Judge of this Court in Jeonath v. Mahanth Bishambhar Das [1921] 106 I.C. 422, held that the landlord was not entitled to enhancement. In the judgment relied upon by the learned Subordinate Judge the learned Judge of this Court observed as follows:

On the main question in the case there ssems to be no authority but it is in my opinion clear as a matter of principle that on the ground that there is a rise in the price of staple food crops, no enhancement can be claimed in respect of the land which is used in such a way with the acquiescence of the landlord that food crops cannot be raised thereon.

3. The point was considered in a number of cases in the Calcutta High Court and it was held that the fact that the tenants did not grow food crops upon the holding but used the holding as an orchard or kept it waste or used it as homestead land, did not prevent the landlord from suing for enhancement u/s 30(b), Ben. Ten. Act. The rent of the holding was a consolidated rent for all the lands and there was nothing either in the contract of tenancy or in the provision of law which took away the right of the landlord to claim enhancement on the ground of rise in price of the staple food crops simply because the tenants did not grow food crops upon the holding in dispute.

4. In E.I. Ry. Co. Vs. Janakidas Marwari and Another, the question was expressly raised and decided by the Calcutta High Court and it was held that under similar circumstances the landlord was entitled to enhancement, and we find nothing in principle which could entitle the defendants to object to enhancement u/s 30(b), Ben. Ten. Act, simply because they had converted the land into an orchard and because the landlord did not object to such conversion.

5. In my opinion the decision of the learned Subordinate Judge on this point cannot be sustained. There does not appear to have been any dispute in the Court below as regards the rate of enhancement and, therefore, the decree of the Munsif allowing the enhancement will stand. The appellants are entitled to their costs throughout.

Macpherson, J.

I agree.