Judgment

S. K. DAS, J. (with him Jafer Imam J.): These two appeals arise out of a litigation which has had a chequered career in the courts below. The short facts are these. The suit out of which the appeals arise was instituted on 13-1-1941, but the plaint was amended on 4-5-1942. The amended plaint was to the effect that in or about the year 1905 the defendant, the then Provincial Government of the Central Provinces and Berar, Nagpur, "opened up" an area known as the Craddock Town Area which was originally called the Sitabuldi Extension Area or Dhantoli Area. Due to the scarcity of residential accommodation in the city of Nagpur, the then Provincial Government along with some prominent members of the Nagpur Municipal Committee devised a scheme to extend residential accommodation by acquiring agricultural land and making it available for residential purposes. With that object in view, the area in question was acquired and building sites of the average size of about 10,000 sq. ft. each were carved out. These were leased out on a premium of Rs. 350 and an annual rental Rs. 3/8/0 each. The indenture of lease in each case contained a clause to the following effect:

"III. And the lessor does further covenant that he will at the end of the term of 30 years hereby granted and so on from time to time thereafter at the end of each successive further term of years as shall be granted at the request of the lessee minute to him a renewed lease of the land hereby demised for the term of 30 years; Provided that the rent of the land hereby demised shall be subject to such fair an equitable enhancement is the lessor shall determine the grant of every renewal : Provided also that every such renewed lease of the land shall contain such of the covenants, provisions and conditions in these presents contained as shall be applicable and shall always contain a covenant for further renewal of the lease."

One of the leases was executed on 24-5-1909 and some other leases near about that year. By the year 1939 the first 30 years period of some of the leases came to an end. The original plaintiffs, who were two in number and who sued in their individual right as also representing the members of an association known as the Craddock Town Plot-holders Association, alleged that on the expiry of the terms of the leases in question, during which period some of the lessees had built houses on the leasehold property, the then Provincial Government proposed an enhancement of Rs. 21/14/0 from Rs. 3-8-0 as annual rent and also the insertion of some new terms in the renewed deeds of lease.The plaintiffs, on the contrary, said that Rs. 7 per plot was the fair and equitable enhancement. Various representations to the relevant authorities having proved unavailing, the plaintiffs instituted the suit in which they prayed (a) that the enhancement of rent from Rs. 3-8-0 to Rs. 21-14-0 per plot was not fair and equitable within the meaning of Cl. III of the deed of lease; (b) that the offer of Rs. 7 as annual rent made by the association was fair and reasonable; (c) that the defendant do insert in the renewed deeds of lease only such conditions as were to be found in the original deed and not to add to them to the detriment of the lessees interest; and (d) that in the event of this Court not agreeing that Rs. 7 was a fair and reasonable rent, a fair and equitable rent should be fixed by it. The suit was contested by the defendant on several grounds, with most of which we are not now concerned.

2. The learned Subordinate Judge of Nagpur, who dealt with the suit in the first instance, took up certain preliminary issues for decision and by a judgment dated 18-4-1942, he disposed of those preliminary issues. One such issue material for our purpose was in these terms : "In case of dispute as to what is fair and equitable rent, has the civil court no right to determine what is fair rent? On this preliminary issue, he found "that under the terms of Cl. III of the indenture of lease