Mohamad Noor, J.This is an appeal by the defendant in a suit for recovery of arrears of rent of a raiyati holding with a prayer for enhancement of the rent u/s 30(b), Ben. Ten. Act. The present appeal is confined only to the question of enhancement of the rent. The enhancement was resisted by the appellants on the ground that the plaintiff landlord had failed to maintain certain irrigation works of the village which he was bound to do according to the Record of Rights which clearly indicated that the rent recorded was payable only if the works were maintained. This plea was overruled by both the Courts below and they allowed enhancement at the rate of four annas per rupee. The same plea has once more been repeated in the second appeal.

2. It appears that after the completion of the settlement operations the plaintiff landlord sought enhancement of rent under 8. 30(a) and 30(b), Ben. Ten. Act, while the tenant defendants claimed abatement of rent u/s 52(b) Ben. Ten. Act. A compromise was effected and the tenants agreed to pay enhanced rent at the rate of one anna per rupee and the landlord undertook to maintain the irrigation facilities of the village which existed before the year 1314 Fasli It is on this agreement and on the entry in the Record of Rights that the tenants opposed the enhancement.

3. Much stress has been laid on the observation of the learned District Judge in appeal that non-maintenance of the works of irrigation was no ground for refusing enhancement of rent and that in such a case Section 35, Ben. Ten. Act, had no application. Perhaps the learned District Judge is not correct. He says that there are several cases of this Court to that effect. My attention was drawn to only one of them, namely Musammat Bibi Sayedatulnissa and Others Vs. Amrit Mahto and Others, . There also there is a single passage in the judgment of Ross, J., to the effect that non-maintenance of works of irrigation is by itself no ground for application of the principle of Section 35, Ben. Ten. Act. There are however other decisions of this Court which have laid down a contrary view. I need not however pursue this matter, as on the finding of facts no question of law arises. Both the Courts below have found as a matter of fact that the irrigation works have been efficiently maintained.

4. The case of the defendants was that the landlord neglected to do earth works since the year 1314, but this was obviously false in view of the Record of Rights including the fard-i-abpashi prepared in 1317. In short, both the Courts below on the evidence adduced have come to the conclusion, as I have said, that the landlord had been efficiently maintaining the irrigation works. The learned District Judge might have been wrong in his view of the law, but on facts the question of law does not arise

Mr. Mullick has however made it a grievance that the trial Court refused to issue a commission for inspection of the village to ascertain the condition of the irrigation works. It ought to have issued such a commission especially when the written statement of the defendants made specific statements about the works of irrigation which were neglected.

5. The issue of commission was however a matter in the discretion of the Court, and if the discretion was wrongly exercised the question ought to have been raised before the Court of appeal below. There is nothing to show that the appellants ever pressed the question of commission before the lower appellate Court. Sir Sultan Ahmed, who appeared for the respondent, had appeared on behalf of the respondent before the lower appellate Court also. He stated that Mr. K.B. Datt, who appeared on behalf of the appellants, did not raise the question of the commission. This has not been denied on behalf of the appellants. I am therefore unable to allow this to be agitated in the second appeal.

6. Last of all, Mr. Mullick has pressed the consideration of the question of rate of enhancement on the ground of general depression. As was laid down by a Special Bench in the case of Nathuni Thakur Vs. Ramsaran Singh, , the general depression is a ground which is to be taken into consideration in applying Section 35, Ben. Ten. Act, but the effect of general depression in a particular case must be clearly established and decided. In this case the decision of the trial Court and also of the Court of appeal below were passed in the year 1930 when the general depression was prevailing. The question does not seem to have been raised by the defendants either in the trial Court or before the lower appellate Court.

7. It cannot be said that any enhancement in this case would be unfair and inequitable. The enhancement permissible under the law was six annas per rupee for dhanhar lands and fives annas two pies per rupee for bhit lands. The holding being a mixed one, the lower of these rates was only permissible.

The learned trial Court however taking into consideration that the rate of rise in prices in the second decennial might not continue allowed enhancement at the rate of four annas per rupee only and this has bean maintained by the lower appellate Court.

8. I have referred to the Settlement Report of Patna and find that the average rate of rent in thana Barh, where the land in suit is situated, is Rs. 6-6-0 per acre which is almost equal to the rent which is now being paid for the lands in suit. This rate is also the average rate of rent in the village. It seems to me therefore that the rate of rent which is being paid by the defendants is not high. It is the same as is being paid by an average tenant of the locality. Under the circumstances irrespective of the consideration of depression the landlord would have ordinarily been entitled to the full amount of enhancement, namely, five annas two pies per rupee. The defendants did not raise the plea of depression and it will be unjust if the case be remanded for deciding a question which was never raised.

9. Nevertheless, in my opinion, taking into consideration the depression prevailing an increase of 25 per cent of the rent seems to me rather high. But I have also to take into consideration the fact that whatever rent be now fixed will continue for 15 years and the landlord will not be able to claim any further enhancement even if the depression disappears. I find from the judgments of the Courts below that some judgments were produced before them, namely Exs. 14 and 14(a), where an enhancement of three annas per rupee was allowed. I think it will be fair if the same rate of enhancement be allowed in this case.

10. I will therefore reduce the rate of enhancement from four annas per rupee to three annas per rupee. With this modification the appeal is dismissed. The parties to bear their own costs of this appeal.