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Judgment
We accept the findings of the District Judge on the first two points referred to him: that is, that both the sinking of the wells and the payment of the garden rates must be referred to some period prior to Fasli 1290, but how long before, it is impossible to say in either case.
The third point was, "whether the defendants were paying garden rates before the wells were sunk." On this the District Judge says there is practically no evidence and he can come to no definite conclusion, although he considers it "not unlikely that the garden rates and the sinking of the wells were contemporaneous." We cannot treat this very guarded surmise ns a finding and can only take it that no finding is possible.
In these circumstances, what conclusion should be arrived at? In our opinion, the landlord''s claim must be allowed.
The salient feature in this case, which at once distinguishes it from the cases relied on by the respondents, Fischer v. Kamakshi Pillai 21 M.k 136; Aruwugam Chetti v. Raja Jagaveera Rama Venkateswara Ettappa 15 M.L.J. 292 and Paramaswummi v. Pusala Thevan 20 M.L.J. 142, is that there is no evidence in this case to show that any lower rate than that now claimed was ever at any time paid. In other words, it is impossible to treat this as a case of enhancement of rent. The rent now claimed has been, in fact, paid for at least 28 years before suit and there is no evidence of payment at any other rate. The landlord''s claim must, therefore, be allowed. The decrees of the District Judge are set aside and those of the Deputy Collector restored with costs to the plaintiff throughout.