The landlord must prove the original area of land let and the need for measurement to support claims for increased rent. The presumption is against rent being a consolidated rent without evidence.

JUDGMENT

Rankin, J. - These two second appeals (2325 and 2420 of 1920) arise out of two suits for increased rent (1484 and 1495 of 1918) brought by the Maharaja of Kasiinbazar against Kaulat Shaik and Lagnu Mandal respectively. The plaintiff claimed additional rent for excess area, and also enhancement of rent on the ground that the rate of rent hitherto paid was lower than the rates prevailing in the locality. The Munsiff of Maldah disallowed both claims and appeals to the Additional Subordinate Judge of Rajshahi have been dismissed by him with costs.

2. In Kaulat's case the tenancy has hitherto stood as comprising an area of 1 bigha 8 cottaks 8 chittaks bearing a jama of 14 annas 9 pies. The plaintiff claimed that this should be found to be a tenancy of 2 bighas 1 cottah bearing a jama of Rs. 2-12-7

3. In Lagnu's case the tenancy has hitherto stood as of 10 bighas 15 cottahs bearing a jama of Rs. 15-6. The plaintiff claimed that this should be 13 bighas 15 cottahs. 1 chittak at a jama of Rs. 26-12-9.

4. The plaintiff's case is that the whole of Kaulat's land is now mulberry land and the whole of Lagnu's land is now orchard. That the land originally settled with Kaulat was partly mulberry land but chiefly paddy land and that of Lagnu was mulberry land. The plaint sets forth the "prevailing rates" per bigha as these r paddy 14 annas, mulberry Rs. 1-5-9, and| orchard Rs. 1-15-2.

5. The plaintiff's claim is for the years 1322-4 in each case. The first ground of claim was that the tenants had agreed to his demand in or about 1321. Apart from proof, with or without the aid of a custom, of a term in the original contract of tenancy that the tenant should hold at a rent varying from time to time according to the quality or user of the lands, this ground of claim is in the present casa quite untenable and the findings of the Courts below are in no way incorrect. I see no proof of bona fide dispute and the compromise thereof as affording consideration for an agreement as to excess area or as justifying an enhancement of rent contrary to Section 29. The landlord claims by agreement to have got all he can possibly claim.

6. The question of the original conditions of the tenancy arises also when the plaintiff's claim to alteration of rent for excess area is considered u/s 52. The difficulty here is the plentiful lack of evidence. Save that the holdings were not in existence in 1266 the only evidence which is of use to the plaintiffs is the mention of the areas in the karchas on the back of the dakhilas. In Kaulat's case there seem to be eight of such endorsements the earliest being 1311. In Lagnu's case there seem to be three only the earliest being 1320. The details are as follows:

Kaulat's case.

Mulberry land 7 cottahs, rate per bigha Rs. 1-5-9, total Rs. 0-8-3.

Crop-bearing land 1 bigha, cottah, rate per bigha Re. 0-6-0, total Re. 0-6-6. Total rent Re. 0-14-9.

Lagnu's case.

Mulberry land - 10 bighas 15 cottahs, rate per bigha Rs. 1-4-7, total Rs. 15-6-0.

7. These are short particulars written on the back of rent receipts; nothing more. The question is how much can be distilled from them, and in answering that question they cannot be treated as though they were the vital words in the operative part of a written instrument of tenancy.

8. There is no evidence that the lands were originally settled, or at any time re-settled, after any measurement. There is no evidence that the tenants have overstepped any previous boundaries. There is no evidence that any wastelands lay adjacent be these lands. There is no written instrument creating or re-affirming either tenancy; no mention anywhere of boundaries or that the land was within certain boundaries.

9. The learned Subordinate Judge has dismissed the plaintiff's claim by reason of the insufficiency of his own evidence. He has not dealt with or relied upon any evidence for the defence as to this matter. The question, therefore, is whether on the face of the dakhilas he was bound to infer such conditions o