JUDGMENT

Asutosh Mookerjee, Acting C.J.

1. This Reference has been made in connection with an appeal by the tenants, defendants, in a proceeding u/s 105 of the Bengal Tenancy Act for settlement of fair and equitable rent. One of the questions in controversy was, whether the defendants paid a consolidated rent for the tenancy, or whether they were liable to pay additional rent for increment of area as disclosed by recent survey over the area shown in the rent-roll of the landlords. The Revenue Officer and the Special Judge answered this question in favour of the landlords. On second appeal to this Court, the decision of the Special Judge was assailed on the ground that his conclusion was based upon an erroneous construction of Sub-section (6) of Section 52 of the Bengal Tenancy Act, That sub-section is in the following terms:

When in a suit under this section, the landlord or tenant proves that, at the time the measurement on which the claim is based, was made, there existed, in respect of the estate or permanent tenure or part thereof in which the tenure or holding is situate, a practice of settlement being made after measurement of the land assessed with rent, it may be presumed that the area of the tenure or holding specified in any patta or kabuliyat, or (where there is an entry of area in a counterfoil receipt corresponding to the entry in the rent roll) in any rent roll relating to it, has been entered in such patta, kabuliyat or rent roll after measurement.

2. The appellants argued before the Division Bench that the expression at the time the measurement on which the claim is based was made in Section 52(6), signified "at the time when the tenancy in question originated," and, in support of this position, relied upon the decision in Umed Ali v. Habibullah Khajeh Habibullah v. Umed Ali (1891) A.C. 107 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 55 L.P. 676 where it was ruled that the words mentioned did not refer to the measurement upon which the excess area had been found out before the institution of the suit. The respondents submitted, on the other hand, that this was not the correct inter, predation of the sub section which, according to them, referred to the measurement by which the augmented area, for which additional rent was claimed, had been ascertained. The Division Bench was unable to accept the interpretation placed upon Section 52(6) in the case of Timed Ali v. Habibullah Khaseh Habibullah v. Umed Ali (1891) A.C. 107 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 55 L.P. 676 and accordingly referred the following question to a Full Bench for decision:

Does the expression at the time the measurement on which the claim is based was made in Section 52(6) refer to the measurement upon which the excess area is found out before the institution of the suit, or does it, as ruled in Umed Ali v. Habibullah Khajeh Habibullah v. Umed Ali (1891) A.C. 107 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 55 L.P. 676 refer to the measurement made at the time of the original settlement.

2. As the question arose in an appeal from Appellate Decree, the whole appeal has been, under the Rules of the Court, referred to the Full Bench for decision, The appellants have contended before this Bench, that to determine the meaning of the expression at the time the measurement on which the claim is based was made," we should first ascertain what difficulties had been created by the law as it stood before Section 52 was amended by the insertion of Sub-section (6) therein, and then interpret the phrase on the assumption that the Legislature intended to remedy what might have been considered as the undesirable result of the Section in its original form. The respondents have argued that this is not the correct method of interpretation of a statutory pro vision framed in unambiguous language, and they have placed reliance upon the following passage from the judgment of Lord Herschell in Bank of England v. Vagliano (1890) A.C. 107 : 60 L.J.Q.B.