The burden of proof rests on the defendant to establish exemption or non-liability under the law, and the court will consider the legal provisions and their interpretations to determine entitlement to rent enhancement.

JUDGMENT

Henderson, J. - The litigation which has now culminated in the present appeal has had an extremely chequered history but it will not be necessary for our present purpose to set out all the facts. Suffice it to say that the suit out of which this appeal has arisen was instituted for the purpose of settling a fair rent for certain lands which have accreted not only to the plaintiff's Zamindary, but also to the tenure of the defendants. The revenue authorities have fixed certain revenue upon it which the plaintiff is bound to pay and the plaintiff now asks that he also should be given an increase of rent from the defendants. But briefly his case is that he is entitled to it under the provisions of the Bengal Tenancy Act. The respondents resist the claim upon three main grounds. Their first contentionis that they are exempted by the terms of the Patta and Kabuliat which were executed when the holding was originally created as long ago as the year 1273. In the second place they contend that they are not liable under the law, and in the third place they contend that the matter has been concluded in their favour and that the question has now become res judicata. The learned Subordinate Judge who tried the suit decided the first point in favour of the plaintiff. This decision was reversed by the learned District Judge on appeal.

2. The translation of the Kabuliat has been placed before us and in our opinion the learned Subordinate Judge was right on this point. It is quite clear that a certain area of land was settled after measurement at a certain rental and there can be no question that the intention of the parties was that the rent for that land was not to be enhanced. Then in the second place there was a provision that in the event of any diluvion the defendants will not get any abatement of rent. On this point it seems desirable to stress the fact that the defendants were getting a quid proquo. They were maintaining in fact their right to any re-formation in situ and any further accretion which might take place in future. There is really nothing in this provision to entitle us to say that it implies something else of a totally different character. This really disposes of the provisions in the lease. It is nowhere said that the landlord is willing to surrender his right to additional rent for any land which may subsequently form by accretion. We are not prepared to imply that any such agreement was intended. It is obvious that in such an event the landlord had before him the danger, which has actually materialized, that in the event of any accretion his revenue might be greater than the rent which he was entitled to realize. For these reasons we are of opinion that there is nothing in the lease itself which would defeat the present claim of the plaintiff.

3. The second point is based upon the provisions of Regulation 11 of 1825, but has ultimately to be decided upon the burden of proof. The learned Subordinate Judge did not find, and in the absence of any evidence could not find, that the plaintiff was not entitled to any enhancement under the terms of that Regulation. In fact the position is that we simply do not know whether he was or was not. What the learned Judge did was to approach the case as though the Bengal Tenancy Act had never been passed and the suit was one for enhancement of rent under the terms of the Regulation. No doubt in a suit of that character it would be necessary for the plaintiff to show that there was an established usage under which the defendants were liable to pay additional rent for any accretion to their tenure.

4. The present suit however was one under the Bengal Tenancy Act, and there can be no question that under the provisions of that Act the plaintiff is entitled to enhancement. The answer made by the defendants is that the plaintiff's claim is defeated by Sub-section 4, Section 2. That subsection is in these terms: "The repeal of any enactment by this Act. shall not revive any right, privi