Judgement Appeals from decrees of the High Court (May 12, 1899) reversing decrees of the Subordinate Judge of Mimensingh (July 31, 1895). The question was whether the rents in suit should, under s. 7 of the Bengal Tenancy Act, 1885, be enhanced. The First Court held that the appellant had failed to prove the existence of a customary rate of rent, and there being no contract fixing the limit, it must be ascertained to what limit the rent might be fairly and equitably raised. The Subordinate Judge was of opinion that the evidence as to the rates of rent realizable was unsatisfactory; that the defendants had suppressed their books of accounts which would shew the rents actually realized by them, and the road cess returns filed by the appellant Law. Rep. 30 Ind. App. 177 ( 1902- 1903) Hem C hunder C howdhry V. Kali Prosunno Bhaduri 80 furnished a reliable basis for calculating the gross collections of the whole tenure, the more especially as the evidence for the defendants shewed that the ryots paid all the shares in the tenure at the same rate. The High Court rejected some of the road cess returns as inadmissible in evidence, and attached very little weight to the remainder, not even sufficient to shift to the defendants the burden of proving what the actual gross collections were. They in consequence dismissed the suit, as there was no evidence to shew that the existing rents were not fair and equitable. Mayne and De Gruyther, for the appellant, contended that the High Court was wrong in the view which it took of the road cess returns, and that there was sufficient evidence produced by the appellant of the assets of the tenure in suit to enable the Court to ascertain the amount of the gross collections of rent. At any rate, there was sufficient to shift on the respondents the burden of proving that the amount so ascertained was erroneous. Reference was made to Bengal Act VII. of 1880, ss. 6, 14,17,18, 21; the Evidence Act, s. 32, clauses 2 and 3; ss. 35, 106, 114 (g). C. W. Arathoon, for some of the respondents, contended that the road cess returns were not admissible in evidence. They are not public documents under s. 35 of the Evidence Act. They are mere private documents. of 1880, ss. 6, 14,17,18, 21; the Evidence Act, s. 32, clauses 2 and 3; ss. 35, 106, 114 (g). C. W. Arathoon, for some of the respondents, contended that the road cess returns were not admissible in evidence. They are not public documents under s. 35 of the Evidence Act. They are mere private documents. Even if admitted, they were neither reliable nor sufficient data for ascertaining the assets of the tenure. The appellant had failed to prove any right to enhance or any ground for saying that the existing rents were not fair and equitable. Mayne replied. The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. The appellant, Hem Chunder Chowdhry, is the owner of a four annas share in the pergunnah Pukhuria Jainsahi, which originally formed one entire zemindary estate. In this pergunnah there has long existed a subordinate tenure known as Madarjani, which is owned and possessed by the respondents and one Guna Misser, who is not a party to the present appeals. The questions for determination are (1.) whether the appellant has made out his claim to the enhancement of rent allowed by the Subordinate Judge; and (2.) from what date that enhanced rent is claimable. For many years the right of the zemindar to enhance the rent of this taluq has been a subject of contest in the Indian Courts, but it was ultimately established by a decree of the High Court at Calcutta, which decided, on November 30, 1888, that the tenure held by the respondents was of a nature liable in law to an enhancement of rent. From this decree no appeal was preferred, and their Lordships must hold that it is now too late to reopen the question. It remains to be considered, however, whether in the suits to which the present appeals relate the appellant has made out his claim, in fact, to the enhancement which he seeks. The Subordinate Judge found in favour of the appellant on this point, but his decree was reversed by the High Court. Under s. 7 of the Bengal Tenancy Act (No. VIII. The Subordinate Judge found in favour of the appellant on this point, but his decree was reversed by the High Court. Under s. 7 of the Bengal Tenancy Act (No. VIII. of 1885), where the rent of a tenure-holder is liable to enhancement (as is the case here), it may, " subject to any contract between the parties, be enhanced up to the limit of the customary rate payable by persons holding similar tenures in the vicinity," or, " where no such customary rate exists, it may subject as aforesaid, be enhanced up to such limit as the Court thinks fair and equitable." The Subordinate Judge found that the plaintiff had failed to prove the existence of any customary rate, and accordingly proceeded to ascertain, by an Law. Rep. 30 Ind. App. 177 ( 1902- 1903) Hem C hunder C howdhry V. Kali Prosunno Bhaduri 81 examination of the evidence before him, the limit to which the rent, might be fairly and equitably enhanced, there being no contract to fix that limit. The evidence, as is not infrequent in cases of this kind, was of a most unsatisfactory character. " Numerous witnesses, says the Subordinate Judge, "have been examined by both parties to depose to the rates alleged by them, but none of them appears to be reliable." Much of the documentary evidence he considered equally worthless; and the High Court concurred in this appreciation. Some road cess returns were, however, put in by the appellant, which the Subordinate Judge regarded as sufficiently trustworthy to afford a basis upon which to ascertain the assets of the taluq, and thus to fix a fair and equitable limit of enhancement. These returns are rendered under Bengal Act IX. of 1880, s. 95 of which makes them admissible in evidence against the person by or on behalf of whom they were filed. It is also contended that, on other grounds, some of them are relevant evidence under the Indian Evidence Act. It is admitted that two of these returns relate to the particular portion of the zemindary held by the appellant. They were filed on behalf of Raja Jotindra Narain Roy, who is now dead, and whose widow, the respondent Rani Hemanta Kumari Debi, is one of the taluqdari tenants, as well as the owner of a ten annas share in the whole zemindary. They were filed on behalf of Raja Jotindra Narain Roy, who is now dead, and whose widow, the respondent Rani Hemanta Kumari Debi, is one of the taluqdari tenants, as well as the owner of a ten annas share in the whole zemindary. They shew that, in 1884, Raja Jotindras fractional share in the taluqdari tenure was let out on lease for terms of three or four years to certain persons at an aggregate rent of Rs.108 4a 8p., to which must be added Rs.4 9a. for the value of the taluqdars no share of khamar land, making the total value of the Rajas share Rs.112 13a. 8p. per annum. Adopting this figure as a fair statement of what the taluqdars generally received from their lessees as rent on account of their holdings in the taluq, the Subordinate Judge worked out a rule-of-three sum which brought the rent received by the taluqdars in respect of the appellants four annas share in the zemindary to Rs.3140 6a.; and, after making usual deductions for expenses and collection charges, he fixed the enhanced rent payable to the appellant at Rs.2386 11a. in respect of the portion of the two estates in question in the suit. The learned judges of the High Court dissented from this method of dealing with the case. The road cess returns did not, in their opinion, " furnish any reliable data for ascertaining the assets of the tenure " ; and they held that the mathematical calculation made by the Subordinate Judge rested on two assumptions, for neither of which they saw any ground. It is quite true that the returns are not conclusive evidence; but, so far as they go, they undoubtedly shew that the taluqdars were receiving from their sub-tenants a considerably higher rent relatively than that which they were paying to their superior landlord, and that the claim for enhancement could prima facie be supported on the ground that the existing rate was consequently not " fair and equitable" within the meaning of the Bengal Tenancy Act. In the opinion of their Lordships, this evidence was sufficient to shift the onus to the respondents, in whose power it was, by producing their collection papers, to rebut any presumption raised against them by the road cess returns. But, for reasons best known to themselves, they did not produce any documentary evidence on which reliance could be placed. In the opinion of their Lordships, this evidence was sufficient to shift the onus to the respondents, in whose power it was, by producing their collection papers, to rebut any presumption raised against them by the road cess returns. But, for reasons best known to themselves, they did not produce any documentary evidence on which reliance could be placed. On the contrary, they put in certain counterfoils of receipts alleged to have been granted to their ryots; and these the Subordinate Judge found to have been fabricated for the purposes of the suit. Under s. 114 (g) of the Indian Evidence Act (No. I. of 1872) the Court may presume that "evidence which could be, and is not, produced would, if produced, be unfavourable to the person who withholds it " ; and their Lordships consider that, in the circumstances of the case, the Subordinate Judge was fully justified in coming to the conclusion which he formed upon the only evidence before him which he regard; d as reliable. The decree of the Subordinate Judge was made on July 31, 1895, and awarded the enhanced rate Law. Rep. 30 Ind. App. 177 ( 1902- 1903) Hem C hunder C howdhry V. Kali Prosunno Bhaduri 82 prospectively from the end of the Fasli year 1298. On November 20, 1895, the appellant filed a suit against the respondents to recover the arrears of rent due for 1298. The Subordinate Judge held that the claim was barred by s. 12 of the Civil Procedure Code, but not by the law of limitation. The High Court, on appeal, came to the precisely opposite view. In the opinion of their Lordships the proceedings in the earlier suit stayed the operation of the law of limitation ; and as the appellant claimed the arrears of 1298 in that suit, but his claim was then disallowed as premature, he is now entitled to the benefit of the decree for enhancement and to recover the arrears at the enhanced rate. The decree of the Subordinate Judge, in which he ascertained the amount due for arrears at that rate, but postponed execution until the final decision of the enhancement suit, can therefore be sustained. Their Lordships will humbly advise His Majesty that the decrees of the High Court in both suits should be set aside with costs, and those of the Subordinate Judge affirmed. Their Lordships will humbly advise His Majesty that the decrees of the High Court in both suits should be set aside with costs, and those of the Subordinate Judge affirmed. The respondents will pay the appellants costs of the appeals, except that the parties will pay their own costs of the petition lodged by the appellant for leave to refer at the hearing to certain documents.