JUDGMENT
Rankin, C.J.
1. This is a Letters Patent Appeal from a decision of my learned brother Mr. Mitter, J., sitting in second appeal. The suit was brought by the plaintiff against the present appellant for rent. The position is this. The plaintiff is a raiyat who, for a holding of two plots, pay a rental of Rs. 9-8-0. He has let one of those two plots to the defendant-appellant who is an under raiyat and he has left that at a rent of Rs. 32-0-0 per annum. The tenant-defendant’s contention is that, under Section 48, Ben. Ten. Act, the plaintiff cannot recover the rent at the rate claimed. Ha says that, although there has been let to him only a part of the plaintiff’s holding, nevertheless the plaintiff cannot, under Section 48, Ben. Ten. Act, recover more than the total rent which he pays for his total holding plus 50 per cent, on that. In other words, the defendant’s, contention is that Rs. 14-4-0 is the maximum amount which the plaintiff can claim from him. That contention has been negatived by the lower appellate Court and by Mitter, J., on second appeal, the view taken being that Section 48, Ben. Ten. Act does not apply at all except in a case where the raiyat’s holding and the under raiyat’s holding are co-extensive. Now, it is quite clear that, as a matter of commonsense and as a matter of presumed intention of the legislature with reference to the mischief of the section, the view taken by these learned Judges involves a certain paradox. I do not say that this consideration is conclusive, but it is, certainly paradoxical to be told, that if the plaintiff had let both these two plots to the defendant, the utmost he could have got by way of rent from the defendant is Rs. 14-4-0, but because, of these two plots, he has let only one to the defendant, he can for that one recover as much as Rs 32. We have, therefore, to see whether it is really true that Section 48, Ben. Ten. Act, must be read as limited to cases where the holdings are absolutely co extensive.
2. Now, the authority which has been sited to us on behalf of the appellant is the case of Nim Chand Saha v. Joy Chandra Nath [1912] 39 Cal. 839. That was a case where the raiyat held land under a lease and by this lease certain classes of land were specified and certain rates of rent were prescribed for certain classes of land. A part of that land, he let out to the defendant, the under raiyat, and the under raiyat’s contention was that, as it was ascertainable which class of land had been sublet, the utmost that under Section 48, Ben. Ten. Act could be claimed would be 50 per cent, in excess of the amount of the raiyat’s rent which was referable upon apportionment to the land which he had sublet to the defendant. With that contention the Court had to deal. In an ordinary case, it would be too plain for argument that Section 48 could not be applied by a mere rule of three; in other words, on the assumption that all lands of a tenancy are of equal value. But the case before the Court was more reasonable than that because there the tenant prayed in aid the circumstance that his land could be shown to be of a certain class and the plaintiff under his lease was paying so ranch rent for every bigha of that certain class. The learned Judges Haringtou and Mookerjee, JJ., were not faced with the question which is presented by the case before us. It was not suggested that it would be of any service to the defendant there to offer to pay as much rent as would equal the amount of rent paid by the raiyat for the total holding plus 50 per cent of that. What the learned Judges were struggling with was the contention that, in the special circumstances of that case, the class of land being known, the amount paid by the plaintiff with respect to the defendant’s land could be taken as ascertainable. The learned Judges there said that that argument was based on a fallacy. They then say:
It cannot be affirmed that the raiyat pays so much rent for any particular parcel. No doubt, for the purposes1 of the assessment of the aggregate rent certain rates were taken as the basis of the calculation by the superior landlord. Nevertheless the raiyat holds the entire lands of the holding for the aggregate amount;
and then they go on to point out that the whole rent issues out of every part of the land demised. Having given that which a if taken by itself, is an accurate and adequate statement of the law, the learned Judges said:
In our opinion, Section 48, applies to cases in which the land held by the raiyat is co-extensive with the land held by the under-raiyat. The section was never intended to apply to oases on the class now before us.
3. That case was followed by Digambur Chatterjee and Chapman, JJ. in a unreported case Second Appeal No. 2539, of 1911 Akram Ali v. Anwar Ali decided in this Court on 22nd April 1914. We do not find that this latter case differed in any way from the case already dealt with. There, too, there was no question of the tenant being content to pay 1 1/2 times the rent paid by his landlord for the whole of the landlord’s holding. But in Second Appeal No. 3310 of 1915, Netibulla Akanda v. Badi Bepari decided in this Court on 15th August; 1917 by Teunon and Shamsul Huda, JJ., a case arose presenting exactly the same feature as it presented in this case, and there the learned Judges pointed out. that the decision of Harington and Mookerjee, JJ., in Nim Chandra v. Joy Chandra [1912] 39 Cal. 839 was perfectly right if it was understood with reference to the facts with which they had to deal, but that, if it was taken that only where the two plots were absolutely co-extensive was the section to be applied at all, that would be a construction which would de feat the policy of the legislature It seems to me that that case is exactly on all fours with the present case and I agree entirely with the judgment which was given therein. This is what was said:
In applying the case reported in Nitti Chandra v Joy Chandra [1912] 39 Cal. 839 to a case such as this, the learned District Judge has fallen into an error, and to hold that Section 48 applies and can be applied only where the whole of the raiyat’s holding is sublet would be to defect the policy and intention of the legislature, In the case cited, as a matter of fact, the rent for the whole holding was Rs. 21-14-0. The plaintiff claimed in respect of the portion sublet a rent of Rs. 14. To have applied in that case the principle for which the appellants before us now contend would have been to decree a rent higher than the rent claimed.
4. Reference is made in the judgment of Nim Chand’s case [1912] 39 Cal. 839 at p. 843 to certain observations of Geidt, J., in the case of Akhil Chandra Biswas v. Amjad Ali Second Appeal No. 415 of 1903. We have sent for that judgment and have perused it and there is nothing in that judgment which militates against the view which I have expressed. There is a great deal in that judgment which shows that you cannot apply Section 48, Ben. Ten. Act, by assuming that all lands are of equal value and proceeding upon a simple rule of three. The truth is that the proposition that rent issues from every part of the land demised and the proposition that lands are of different quality are insufficient to base a conclusion to the effect that Section 48, can only apply where the two holdings are coextensive. These considerations affords no objection to applying Section 48 in the way which is contended for by the appellant in the present case. Accordingly, I am of opinion that this appeal should be allowed.
5. The result is that the decrees of the learned Judge of this Court and of the lower appellate Court are set aside and the decree of the Court of first instance is restored. The defendant must have his costs in the lower appellate Court, in the second appeal to this Court and in the appeal before us.
6. It was contended before us that the rent in this case was not a money rent, but on this point, the decision of the learned Judge of this Court in second appeal is I think clearly right.
Mukherji, J.
7. I agree.
