Courtney-Terrell, C.J.These are Letters Patent appeals by the plaintiff from the judgment of a single Judge of this Court in two similar suits for enhancement of rent under the Bengal Tenancy Act. The only point which concerns us is the claim by the plaintiff for enhancement on the ground that the existing rents are below the prevailing rate in the village.

2. The Munsif issued a commission to a revenue officer to ascertain the prevailing rate. The Revenue Officer submitted a report setting forth the names of the tenants of similar lands, the area of such land held by each of such tenants, the total rent paid by each tenant in respect of such land and the result of a calculation showing the rate per bigha. He stated that there was no single rate which could be called a "prevailing rate" and, (although Section 31-A, Ben. Ten. Act, had not in fact been extended by the Local Government to this village) he by applying the method described in that section to the figures set forth in his report arrived at the figure Rs. 8-12-0 per bigha as that which should be deemed to be the prevailing rate.

3. The Munsiff accepted the report and accordingly enhanced the rents. The plaintiff appealed to the Subordinate Judge who holding that the method prescribed by Section 31- A was not applicable until other methods of investigation had been tried sent the case back with directions to issue a fresh commission to ascertain the prevailing rate for similar lands in neighbouring villages. This time the Revenue Officer did not follow the course he was directed to take but simply re-submitted the figures set forth in. the first report. The Munsiff and the Subordinate Judge accepted this report and the rent was accordingly enhanced as in the earlier judgment.

4. The learned Judge on appeal decided that the first report of the commissioner disclosed no "prevailing rate" within the meaning of Section 30(a) and that as the second report was not in accordance with the directions of the Subordinate Judge and as those directions were in accordance with law the case must go back for yet a third report upon the basis of the prevailing rate in neighbouring villages.

5. Considerable difficulty has been felt by the Courts in considering the words "prevailing rate" in this section. The section is in substance a re-enactment of Section 17, Act 10 of 1859 and the phrase "prevailing rate" originated from the fact that there were in many places governed by the regulations standard pargana rates which were recognised in the respective localities as the proper rate of rent payable by raiyats of the pargana or in the alternative that "if there was no rate which prevailed throughout the pargana that there were different rates for different "classes of land generally recognised as the customary rates (nirkh) in the village or local area. We do in fact find in very old jamabandis of a great estate such as Bhojpur (belonging to the Maharaja of Dumraon)that there are definite rates per bigha from which the rent is calculated but in Bihar as a whole such rates have fallen into complete desuetude and there is now no general rate in a village or local area. If in any village the rent of any holding is divided by the number of bighas in that holding many different rents will be found to exist side by side.

6. The object of Section 17 of theof 1859 and that of Section 30(a), Ben. Ten. Act, was not to raise or depress rents to a common average level but where it could be found that in any particular area a tenant of the village could expect to get land similar to that in dispute in similar circumstances at some difinite customary rate per bigha that rate should be taken as the proper standard. This was the principle followed by the Courts in Bengal as shown by the decisions in Shadoo Singh v. Ramanoograha Lall [1866] 9 W.R. 83 and Priag Lall v. Brockman [1870] 13 W.R. 346.

7. In 1874 Ainslie, J., of the Calcutta High Court in Shaikh Dena Gazee v. Mohinee Mohan Doss 21 W.R. 157 did permit an average to be taken; but that was a case in which the different rates varied very slightly and were so nearly equal as to make it difficult to say which was-the prevailing rate. What was actually sanctioned in that case was not the striking of a general average from a mass of lump rentals and the Calcutta High Court continued to be careful to point out that the expression "prevailing rate" did not mean an average rate: see Aleo Khan v. Raghunath Prosad Tewari 1 C.W.N. 310. In Shital Mondal. v. Prosonnamoyi Debya [1894] 21 Cal. 986 it was pointed out that the decision of Ainslie, J., in so far as it approved of the adoption of an average, stood alone and that the expression "prevailing rate" in Section 30(a), Ben. Ten. Act, meant not the average of the rents paid by the raiyats of a village but a definite rate actually paid and current in the village. It is clear that if the practice of averaging were permitted those raiyats who were paying a lump rental for their land which by calculation could be shown to be at a rate per bigha less than the rate per bigha similarly found to be paid by those tenants who held more than. 50 per cent of the land would have their rent enhanced. This would mean that enhancement would have to be ordered in every village for there is no provision that the rentals of" those paying: more than the average rental so found may be depressed to that average level. Nevertheless in 1898, Section 31-A(l), Ben. Ten. Act, was passed which is as follows

In any district or part of a district to which this Sub-section is extended by the Local Government by notification in the Calcutta Gazette whenever the prevailing rate for any class of land is to be ascertained u/s 30 Clause (a), by an examination of the rates at. which land of a similar description and with similar advantages are held within any village or villages the highest of such rates at which and at rates higher than which the larger portion of those lands is held may be taken to be the prevailing rate.

8. This section which has not been applied by the Local Government to any great extent does in fact permit the process of averaging to be applied. It may be shown from an examination of the examples that it is in fact a simple method of obtaining an average. If the first illustration given in the section be examined it will be found that the rate of Rs. 1-12-0 selected as the prevailing rate corresponds almost exactly to the result obtained by finding the average rate per bigha which works out at Rs. 1-11-5. If the second example be examined it will be found that whereas by average the rate would be Rs. 1-6-10 the rate to be selected by the proscribed method is Rs. 1-4.-0. The discrepancy has been caused by the fact that a relatively small area of 50 bighas only is supposed to pay the high rate of Rs. 2. It will be noted that even in cases to which the section is made applicable by the Local. Government it is not obligatory to apply the method set forth in the section and in certain circumstances it would be clearly wrong [to use that method. By way of illustration we may take the following artificial example:

9. Now if the method shown in the section be applied the "prevailing rate" to be selected will be Rs. 1-2-0 whereas on an average the amount will be Rs. 1-5-7. It it were the purpose of the legislature that the method of the section were invariably to be applied to areas to which the section is made applicable "the results might be manifestly unjust and artificial.

It has been argued that there is no specific prohibition against applying the principle of Section 31- A to areas to which it has not been made applicable by the Local Government but in Hatihar Prasad Bajpai v. Ajub Misir [1918] 45 Cal. 930 it was expressly held that in enacting Section 31- A the legislature could not be held to have intended to alter the preexisting law in districts to which that section was not applied. In 1915 in Ramdeo Singh v. Moheswaar Prosad [1915] 21 Cri.L.J. 483 a similar decision was arrived at and it was further held that unless the landlord proved that a prevailing rate had been ascertained and found no decree for enhancement could be passed.

10. In the case before us the report sets out as I have said, the name of each tenant of similar land the area held by him and the total jama paid by him. The total size of the land held by each tenant varies from one-tenth of a bigha to thirty-four bighas. The number of tenants is 29 and the rates (calculated by dividing the area in bighas paid for each holding by the total jama of that holding) vary from Rs. 12 per bigha to Rs. 2.3-0 per bigha. No one rate so calculated can be said to be paid either by the majority of tenants or in respect of the majority of bighas. An average works out at Rs. 8-7-9 which closely approximates to the figure obtained by the process set forth in Section 31- A. If all the rents below this figure were enhanced to this figure at least one half of the area would still be paying at a rate higher than the average and if the average were to be taken as the prevailing rate a case for enhancement would remain on the next occasion for each enhancement would be higher again than the average obtained on the present basis of facts. Such a result would lead to continuous disastrous enhancement until the rents had reached the maximum.

11. The Revenue Officer who has made the report has clearly demonstrated that there is no prevailing rate in the village; but the direction of the learned Subordinate Judge that he should ascertain whether there is any prevailing rate in adjoining villages has still to be carried out. This appeal must accordingly be dismissed with cost. The case must be remanded as directed by the learned Judge of this Court but with this modification that the commissioner will be directed only to ascertain whether there is in nieghbouring villages a definite prevailing rate of the kind which has been described above. If no such rate is found to exist the plaintiffs claim for enhancement u/s 30(a) must necessarily fail. It must be made clear that the commissioner is not to be required to find anything more than this. He is not required to find what may be the lowest rate paid by a considerable number of raiyats for land with similar advantages nor is he to ascertain any average rate of rent by the application of the principies laid down in Section 31- A or in any other way.

James, J.

I agree.