Mullick, J.:— By a registered kabuliyat dated the 19th Falgun, 1281 F.S the predecessor of the defendants tool settlement from the predecessors of the plaintiffs of a holding measuring 23 bigha; 6 cottahs and 18 dhurs at an annua rental of Rs. 72-7-6, exclusive of cease for a term of eighteen years. These land are entered in Sch. 1 to the plaint. The defendants had also another holding of 30 bighas 12 cotbahs and 4 dhurs under the plaintiffs, which is described in Sch. 2. Although in the plaint the plaintiffs claim that this holding is bhowli it has not been seriously disputed at this hearing of the appeal before us that the defendants are occupancy raiyats payins a cash rent and the only question is whether the rent of Rs. 19-12-0 inclusive of casses recorded in the Record of Rights published on 5th December, 1899 should be enhanced to Rs. 67-9-10, ½ as has been done by the learned Subordinate Judge in the Court below.
2. With regard to the first holding the plaintiffs allege that the entry in the Record of Rights showing the defendants as raiyats at fixed rates is wrong and that the rent is liable to enhancement in order to accord with the prevailing rates of surrounding lands with similar advantages, and on account of the rise in the price of food grains within ten years preceding the institution of the suit in 1911. The Subordinate Judge found that the entry was wrong, bub that the plaintiffs having failed to sue for a declaration of its erroneous character within six years after the date of the publication the present suit for enhancement was barred by limitation under Article 120 of the Lim. Act. He also found that the plaintiffs had failed to establish a right to enhancement either on the ground of prevailing rates or on the ground of a rise in the price of food grains. He accordingly dismissed the plaintiffs' claim with regard to the holding in Sch. 1. With regard to Sch. 2 he has, as already stated, raised the rent from Rs. 19-12-0 inclusive of cases to Rs. 67-9-10, ½ exclusive of cases. Against this decree the defendants have preferred the present appeal and the plaintiffs a cross-objection. I will deal first of all with Sch. 1.
3. The learned Subordinate Judge is in my opinion wrong in holding that the suit is barred by six years' limitation. It is true that in the plaint the first prayer that the plaintiffs make is that it may be declared that the defendants have only an occupancy right in the lands and that they are not jotdars at fixed rates of rent, and they date the cause of action in this respect from 5th December, 1899, that is, the date of the final publication of the Record of Rights. Now if the suit had been one for mere declaration, it would have been, in my opinion, one contemplated by the latter part of Section 111-A of the Ben. Ten. Act (Act 8 of 1885 as amended by Act 3 of 1898), which is the Act applicable to the case. This was the view taken in Amiruddin v. Saidur Rahman(1), where it was held that if a suit is substantially such a declaratory suit as is contemplated in the proviso of Section 111-A of the Ben. Ten. Act, then the plaintiff conch, by adding a prayer for confirmation of possession, escape the six years' rule. The point from which limitation is to run is the date of the publication of the adverse entry in the Record of Rights [Ram Gulam v. Bishnu Pargash Narain Singh(2) and Francis Legge v. Rambaran Singh(3)], unless there has been any subsequent invasion of the plaintiff's right, in which case it starts from the latter date [Robert Skinner v. Shanker Lal(4)].
4. If it had been necessary for the plaintiff as a condition precedent to enhancement to declare the entry to be erroneous, then I think he would have been bound by the ratio decidendi in Malkarjun v. Narhari(5) and Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaodhri(6). In the former case the plaintiff's claim involved the setting aside of an execution sale and in the latter of an adoption. In both title had passed to the defendants. But an entry in a Record of Rights neither creates nor extinguishes rights; it is merely a rebuttable piece of evidence. I see no reason why the plaintiffs should in the present case have the entry declared wrong before they can succeed inf their suit to enforce their right to enhancement. Whatever presumptive value attached to the entry has been sufficiently rebutted by the entry itself, which shows that it was based on an admittedly erroneous construction of the kabuliyat of 1881. The next question is whether the suit for enhancement is in time. The answer must be in the affirmative, for, Article 131 of the Lim. Act, governs the case. The claim to enhanced rent is a recurring cause of action and limitation runs from the date of refusal. Here the plaintiffs' right to enhance the rents is based not on contract, but on Statute. The kabuliyat gave them power to assess a fresh rent on its expiry in 1892, but by that time the defendants had acquired occupancy rights. They have made no previous demand nor has any case of adverse possession been made. The suit, therefore, is in time.
5. In my opinion, therefore, the learned Subordinate Judge was wrong in holding, that the suit is governed by Article 120 and that it is barred. But even if it had been governed by that Article, it would still be within time. It appears from the pleadings and the evidence that when Madho Prasad, the paternal grandfather of the minor plaintiffs 5 and 6, died in 1898, Awadh Behari Singh, the father of these plaintiffs, was a minor and that he, Awadh Behari, died in 1907 before attaining majority. Admitting, therefore, that six years' limitation began to run from 5th December, 1899 (the date of the publication of the Record of Rights), the minorities first of Awadh Behari and then of his two sons bring into operation Section 6 of the Lim. Act, and give the minors time till three years after attaining majority. Next, by the operation of Article 7 of the Lim. Act, the remaining plaintiffs also are entitled to the benefit of this extension of time. Therefore, even on the view taken by the learned Subordinate Judge the suit is not barred by limitation. With regard to the holding in Sch. 2 no question of limitation arises. The defendant does not dispute the Record of Rights, which shows it to been occupancy holding. The only question, therefore, which remains is whether the plaintiff has made out any case for enhancement in respect of either holding. A large amount of oral and documentary evidence, has been given on both sides, but in my estimation it is quite impossible to rely upon it for the purpose of fixing the prevailing rate, indeed it is clear that the learned Subordinate Judge felt this difficulty and consequently addressed himself to the task of making a rough and ready assessment of fair rent. His proper course was to accede to the plaintiffs' prayer for the appointment of a Revenue Officer as Commissioner. Mr. Das, on behalf of the plaintiffs, is still anxious to have such a local investigation and Mr. Ganesh Dutt Singh, on behalf of the defendants, does not seriously oppose. At the risk of still further prolonging this suit, so unduly protracted and so unsatisfactorily tried by the Court below, I think we must sat aside the judgment and decree of the Court below and remand the case for further hearing with the following directions:
6. The lower Court will forthwith issue a commission under Section 31(b) of the Ben. Ten. Act, to a Revenue Officer for a local investigation. The Commissioner's duty will be as follows: (1) To ascertain what is the prevailing rent, namely, the rent paid by the majority of the tenants for lands of similar description with similar advantages in the village as explained by Mitter, J., in Sadhoo Singh v. Ramanoograha(7). (2). If by reason of the application of Section 29 of the Ben. Tan. Act, or the absence of any prevailing rate within the village in which the holdings in suit lie, the rates in the village cannot serve as a guide, then to ascertain what is the prevailing rate in the neighbouring village or villages. (3). If no one prevailing rate can be found in any village, then to ascertain what is the lowest rate paid by lands of similar description with similar advantages. (4) To ascertain what would be the prevailing rate if Section 31(a) of the Ben. Ten. Act, had applied to the lands in suit.
7. The Court below will direct the above inquiry to be completed within three months and on receipt of the Commissioner's report will, in respect of each holding, adopt in order of merit the rate found by the Commissioner either under the 1st, 2nd, 3rd or 4th head of inquiry, as the case may be, after paying due attention to the terms of S. 31. We accept the lower Court's finding that the plaintiffs are not entitled to enhancement on the ground of rise in the price of food grains. This part of its decision has not been seriously challenged.
8. Atkinson, J.:— I concur.
V.S/R.K
9. Appeal allowed.