ABDUL MANNAF Vs. SHEIKH MUSLIM

JUDGEMENT

(1.) THIS appeal arises out of a rent suit brought by the plaintiff on the basis of a Kabuliyat executed by the defendant at a rate of rent fixed therein. The defence is that the area within the boundaries is less than what is mentioned in the Kabuliyat and therefore, the defendant is entitled to a reduction of rent. The Court of first instance held that what was leased out was the area within specified boundaries and that the defendant was not entitled to claim reduction of rent due to the area being found less than what is mentioned in the Kabuliyat. The lower Appellate Court has reversed that decision and has given effect to the defendant's plea on the ground that " the jama being a variable one dependent on the area to be found on measurement, the test is not the boundaries within which the land is situate. In this particular case the area of the land is the principal matter to be taken into consideration." The question on which the Courts below differed really turns upon the construction of the Kabuliyat as is observed in the case of Durga Prasad Singh V/s. Rajendra Narayan Bagchi (1913) 41 Cal. 493. The Kabuliyat which has been placed before us begins with the words " ordinary Korsha Rayati Kabuliyat within a fixed jama and limited term." Then, it goes on to describe how the plaintiff acquired this property. The stipulation with regard to rent is in these terms: " I having requested you to grant me lease of the land described in the schedule below within your Sahan for the purpose of dwelling therein as ordinary Karsha Rayat and you having consented thereto, I settle Rs. 30 as annual jama and after executing this Kabuliyat 1 agree and promise to the following effect. I shall pay the said rent to your office every year in kists stated below." After the detail of the instalments, there is the following clause: " I shall recognise the occasional measurement; of the land, settlement of rent and its enhancement." In the body of this document the area is not mentioned, but in the schedule at foot the two plots leased out are separately described. All the 4 boundaries are stated after which we find the words " within these boundaries the part of the Batwara Dag No. 93 (& No. 94), the land measuring by guess." Then follows the area. We have carefully considered the question of the construction of the Kabuliyat and are of opinion that the view taken by the learned Subordinate Judge is not correct. It is an ordinary Kabuliyat by which a certain quantity of land within definite boundaries is let out and the area is fixed not with reference to actual measurement but by approximate estimate and the rent fixed is a lump sum for the land "within the boundaries. The landlord in cases like this reserves the right of enhancement of rent if the area is found to be more than what is stated in the deed; and this reservation is made for his own benefit. In order to bring the case within the scope of Section 52, Clause (b) of the Bengal Tenancy Act the tenant must prove that he is entitled to a reduction of rent on account of deficiency in area proved by measurement of the holding as compared with the area for which rent has been previously paid by him. It is neither party's case that there has been any diminution in area since the land was first let out. The defendant, therefore, cannot claim abatement of rent under Section 52, Clause (6). He must rely upon the terms of the contract to show that what was leased out to him was a fixed quantity of land described or situated within certain boundaries. The Kabuliyat does not establish this point and it is apparent that what was leased out to the defendant was the land within certain definite boundaries, the area having been stated by guess. That being the construction we put upon the contract in this case, we think that the reading of the document by the lower Appellate Court is not right and the decree passed by it ought to be set aside. We accordingly allow this appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs in all the Courts.