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Judgment
Ross, J.—This is an appeal by the defendant in a suit for enhancement of rent on the ground of rise in price of staple food crops. The defence was that the major portion of the land was covered by trees and a house and that consequently the rent was not enhanceable u/s 30, Clause (b) of the Bengal Tenancy Act. The learned Subordinate Judge, without coming to any finding as to whether there was a house on the land, held that because, the tenant paid a fixed rent for a certain land and the price of staple food crops had risen, therefore, he was bound to pay an enhanced rent whether he grew food crops on the land or not and whether he planted trees and raised a house.
It is contended that it is contrary to principle that enhancement on this ground should be allowed for land which is not producing or capable of producing food crops in its present state, a state which has been acquiesced by the landlord as is clear from the fact that he has brought this suit. In reply it is urged that no appeal lies under the provisions of Section 153.
It is argued that the only question at issue is the amount of the enhancement and not the right to enhance. In my opinion this h not a correct way of looking at the defence in this suit. The plea of the defendant is that as regards the land covered by trees and the house there is no right to enhance the rent and that is a question on which a second appeal must lie.
On the main question in the case there seems 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 price of staple food crops, no enhancement can be claimed in respect of land which is used in such a way, with the acquiescence of the landlord, that food crops cannot be raised thereon.
The appeal must, therefore, be decreed and the appeal remanded to the District Judge for re-hearing. He must arrive at a finding as to whether there is a house on the land in suit and if so, what area is covered by the house and the trees. The decree for enhancement will be limited to the balance of the land.
Cost will abide the result.