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Judgment
William Ayling, J.—The suit out of which this second appeal arises is one for arrears of rent u/s 77(1) of Act I of 1908. The rent. sued for is
in excess of that paid in previous faslis, the difference being due to an increase in wet area discovered by re-survey. The District Judge has
disposed of the appeal on the short ground that the suit for excess rent will not lie, until the landlord has obtained an order of the Collector u/s
42(2) sanctioning the enhancement.
I think he is right. Section 42 declares that no alteration of rent in respect of an alteration in area shall be given effect to, except under an order
of the Collector passed on an application made to him for that purpose. Admittedly there has been no such application here. The ryot is, therefore,
not liable to pay the additional rent claimed.
The question of whether a suit for enhanced rent (whatever be the cause of enhancement) can be brought without first enforcing the acceptance
of a patta embodying the enhanced rent, on which a long argument was addressed to us, does not really arise in this case.
4.. I would dismiss the second appeal with costs.
Napier, J.
The lower Appellate Court has dismissed the claim for excess rent, holding that it falls within the mischief of Section 42(2) of Act I of 1908. The
appellant urges that he is protected by Section 26(3), that the old paimash rate is the lawful rate and that the landholder who granted the lower rate
being dead, he is entitled to sue for it without suing for a patta u/s 56. I am strongly inclined to think that whereas in this case there is in existence a
patta and muchilika at the lower rate, these terms must be altered either by exchange or by a decree u/s 56 before the landlord is entitled to sue for
the rent. It seems to me that the old patta remains in force, fresh pattas neither having been accepted, exchanged or decreed."" Section 26(3), I
think, only gives him the right to claim to revert to the old rate and compels the Collector in a suit u/s 56 to decree it. I do not think that it is in the
power of the Court in a rent suit to cancel the old patta and until that is done, it constitutes the contract between the parties. Whether this be so or
not, I do not see why we should not accept the footing on which the suit has been decided in both Courts, namely, that the claim is made in
consequence of re-survey as the plaint does not allege the facts necessary to bring the case within Section 26(3). The fact of re-survey is admitted
and the case, therefore, falls within Section 42(2). I, therefore, agree that this second appeal be dismissed with costs.