KHETRAMONI DASI Vs. JIBAN KRISHNA KUNDU

JUDGEMENT

(1.) THE suit to which this appeal relates is brought by the respondents, who are holders of a lease from the deceased appellant of land situated in the Sundarbans, with the object of obtaining a reduction of rent on the ground that a large portion of the holding has been washed away by the surrounding waters, and that the area leased has been reduced thereby to the extent of nearly a quarter. They rely on Section 52, Sub-section 1(b), of the Bengal Tenancy Act, 1885, which enacts that: "Every tenant shall be entitled to a reduction of rent in respect of any deficiency proved by measurement to exist in the area of his tenure or holding as compared with the area for which rent has been previously paid by him, unless it is proved that the deficiency is due to the loss of land which was added to the area of the tenure or holding by alluvion or otherwise, and that an addition has not been made to the rent in respect of the addition to the area."

(2.) THE facts of the case are not substantially in dispute, although the extent of the diminution of the area is not agreed between the parties and must be determined by measurement in the proper way. There is no doubt that there has been a diminution and no case is set up that there has been any previous increase of the holding without increase of rent so as to bring it under the latter part of the clause.

(3.) IT is contended that by the terms of the lease to the respondents they are precluded from denying their obligation to pay the full rent thereby fixed on the ground of flood or diluviation, and it is to meet a defence founded upon this provision that the plaintiffs contend that they are protected by Section 52(b). The appellants, on the other hand, contend that they hold from the Government a permanent tenure in a permanently settled area, and therefore are excepted from the operation of Section 52 by the provisions of Section 197 above referred to.