JUDGMENT Sharpe, J. - These two appeals arise out of two suits for rent in which the Plaintiff sought to recover arrears of rent for the years 1343-1346 B. S. of two tenures at annual rentals of Rs. 10-13-6 and Rs. 75-1-10 respectively. Plaintiff's case was that these tenancies had been created by two kabuliyats of 9th Baisakh, 1309 B. S. (23rd April, 1902) in which the rentals were Rs. 7-11-1 and Rs. 45-5-5 but that some time after the preparation of the Settlement Records, which disclosed an increase in area of the tenures, it had been agreed between the landlord and the tenure-holders that they should pay rent annually at the rates claimed. He asserted further that rent had been paid at those rates for some years prior to the institution of the suits. Defendant No. 10, Panchanan Das, alone contested the suits in the trial Court and the main contentions were that the rents were lump sums fixed for the tenures as a whole, that there had been no agreement to pay and no payment of any additional rent on account of any increase in area and that rent for the years in suit had been paid. The learned Munsif held that the Plaintiff bad failed to prove an agreement by the tenure-holders to pay any additional rent or that any additional rent had been realised from them for any period, and also that he had adduced no satisfactory evidence to show that the tenures had increased in area. He held consequently, that the Plaintiff was not entitled to get any rent in excess of that stipulated in the kabuliyats. He rejected the Defendant's plea of payment and therefore decreed the suits at the kabuliyat rates with proportionate costs, on contest against Defendant No. 10 and ex parte against the rest. 2. Plaintiff appealed to the lower Appellate Court, but the learned District Judge without entering into the merits held that when Plaintiff claimed increased rent for an increase in area, be must bring his suits under sec. 52 of the Bengal Tenancy Act and prove that all the conditions of that section had been satisfied before any decree for additional rent could be made. 52 of the Bengal Tenancy Act and prove that all the conditions of that section had been satisfied before any decree for additional rent could be made. He did not however decide finally the question whether the Plaintiff in a fresh suit could claim any additional rent on account of an increase in area but he dismissed the appeals leaving open the question of the rates of rent. 3. The Plaintiff has now preferred these appeals and Mr. Sen for the Appellant has contended that the learned District Judge was wrong in holding that the Plaintiff must bring his suits under sec. 52, Bengal Tenancy Act, and suggested that this view had been taken under the misapprehension that the tenancies were occupancy holdings and not tenures. Mr. Sen has also maintained that there is no bar to the Plaintiffs suing for rent at the rates claimed, which, he asserts, were settled by agreement between the parties and were realised amicably for several years. In such cases, he has contended, sec. 52 is not at all applicable, and the lower Appellate Court should have decreed the Plaintiff's suits on the evidence adduced. 4. Mr. Mukherjee, for Respondent No. 2, Srikrishna Das, who alone is contesting these appeals, has claimed on the other hand that the view taken by the learned District Judge with regard to sec. 52 is correct, and that the matter is virtually concluded by the findings of fact reached by the trial Court in regard to the failure of the Plaintiff to prove either the agreement to pay or realisation of additional rent or increase of area, findings which, he maintains, have been indirectly approved by the lower appellate Court by his order dismissing the appeals. 5. It does not seem to me that the learned District Judge was under any misapprehension as to the status of the tenant in these cases. His reference to sec. 27, Bengal Tenancy Act, which is clearly applicable only to occupancy raiyats, was in connection with the statement of the case put before him on behalf of the Appellants in his Court, and the decision of Nafar Chandra Pal Chowdhury v. Rahaman Sheikh 23 C. L. J. 580 (1916) was referred to in support of the principle on which he sought to rely. Whether or not there was any misapprehension on that point, however, the view that the Plaintiff could get a decree at the enhanced rates only in a suit brought under sec. 52, Bengal Tenancy Act appears to me to be erroneous. There is no limitation with regard to the enhancement of rent by contract of tenure-holders similar to that provided by sec. 29, Bengal Tenancy Act in the case of occupancy raiyats, and there appears to be nothing in that Act which prohibits a contract between a landlord and a tenure-holder for the payment of increased rent on account of additional area. Sec. 52 (a) of the Bengal Tenancy Act provides that every tenant shall "be liable to pay additional rent for all land proved by measurement to be in excess of the area for which rent has been previously paid by him" and although the new proviso to that section requires that "no Court shall decree any additional rent under this clause unless it is satisfied that there has in fact been an increase in the actual area of the tenure or holding," the proviso contains also the additional words "since the rent previously paid was settled." In the present suits, the Plaintiff seeks to establish a case outside the provisions of sec. 52 and the proviso to cl. (a) of that sub-section. As I understand the matter he does not in fact ask in these suits to recover additional rent for additional area, but he claims that on account of additional area having been found to exist in the tenures, there was an agreement between him and the Defendants some years before the institution of suits that rent would be paid at the rates for which the suits have been instituted and that in confirmation of this agreement, the Defendant have been paying at those rates for several years. In other words, his suits are based, not on the liability provided by sec. 52, Bengal Tenancy Act but on the contract between himself and the Defendant in pursuance of which "the rent previously paid" was at the rates now claimed, and if he can succeed in establishing his contentions, I do not think the omission to bring his suits specifically under sec. 52, Bengal Tenancy Act will debar him from getting the reliefs claimed. 52, Bengal Tenancy Act will debar him from getting the reliefs claimed. Whether he has been able to establish the contracts alleged or the actual realisation of rent in accordance therewith are questions with which I do not propose to deal, since it seems clear to me that these were not considered by the learned District Judge and I cannot accept the contention that he either directly or indirectly approved of the findings of the trial Court on the merits. In my judgment the view taken by him that the Plaintiff must sue under sec. 52, Bengal Tenancy Act is not correct and his disposal of the appeals on this preliminary ground was therefore erroneous. The result is therefore that these appeals are allowed and the appeals out of which the appeals in this Court arise will be sent back to the learned District Judge for re-hearing and disposal in accordance with these observations. In the nature of the appeals, there will be no order as to the costs of this Court.