NAWAB SIR SALIMULLAH BAHADUR Vs. KALI PROSONNO PARBAT

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for rent. The defendants claim abatement as a portion of the land demised has been lost by diluvion. The question in controversy is, whether the tenants are entitled to abatement on the ground stated. The Courts below have decided concurrently in favour of the tenants. On behalf of the plaintiffs - appellants, it has been contended that the defendants contracted themselves out of their right to claim abatement on the ground of diluvion, under the instrument whereby the tenancy was created on the 21st September 1894.

(2.) It cannot be disputed, indeed it has not been disputed before us, that if a portion of the land demised be washed away, the tenant is entitled to abatement of rent, on the principle formulated in Section 52 of the Bengal Tenancy Act in the case of Sheikh Enayetoollah v. Sheikh Elahee Buksh W.R. 1864 Act X, 42 Sir Barnes Peacock, C.J., stated it as settled doctrine that the tenant was entitled to abatement for the lands washed away, if the terms of the kabulyat were not such as to preclude him from claiming that abatement. He pointed out that the rule was founded on principles of natural justice and equity, and that if a landlord let his land at a certain rent to be paid during the period of occupation and the land" was by the act of God put in such a state that the tenant could not enjoy it, the tenant was entitled to abatement. He held accordingly that when land was proved to have been washed away and yet the claim for abatement was resisted by the landlord, it must be proved affirmatively by him that the tenant had contracted himself out of his right to claim abatement by some express stipulation mentioned in the lease. In the case before us, there is no express stipulation in the lease to show that the tenant contracted himself out of his right to claim abatement. But it has been argued that the right has been taken away, by implication, under a clause which is in these terms: "We shall not be able to claim abatement of rent on account of flood, drought, death and flight, waste and abandonment, inundation, possession and dispossession or on any other ground of like nature." There is no mention of diluvion here; but it is worthy of note that the clause is followed by another which reserves in the landlords expressly a right to claim additional rent, if, on measurement, it transpires that the tenant is in possession of excess area. On behalf of the landlords, it has been argued that the clause to which we have referred includes, by implication, cases of diluvion. We are unable to accept this contention as well founded. If there had been an express reference to diluvion, as in the leases in the cases of Watson & Co. v. Nistarini Gupta 10 C. 544 and Nunda Laul Mukherjee v. Kymuddin Sardar 9 C.W.N. 886 or if there had been a general comprehensive clause under which the tenant precluded himself from claiming abatement on any ground whatsoever, as in the case of Ishan Chunder Chowdhry v. Chunder Kant Roy 13 C.L.R. 55 the contention of the landlords might have prevailed. But it is plain that a forced construction should not be put upon this clause to justify an inference that the tenant made himself responsible for the entire rent even if all the lands comprised in his tenancy were washed away. This would be the inevitable logical result if the Contention of the appellants were to prevail. The description of the lands in the schedule to the lease shows that they were, situated on the bank of a river. Consequently the possibility of diluvion could not have escaped the parties and yet they did not exclude diluvion as a possible ground for abatement of rent. In the absence of an express stipulation to cover the contingency which has arisen, it would, in our opinion, be unreasonable to hold that the tenants placed themselves in a position of manifest disadvantage without any corresponding benefit. The case of Satyendra Nath Thakur v. Nilkantha Singha 21 C. 383 on which the appellants rely, is clearly distinguishable. There the tenant agreed to pay rent for a specified area, and it was ruled that the purchaser of his right, title and interest could not successfully contend that he was liable to pay rent for a smaller area found on measurement to be contained within the boundaries. We hold that the view taken by the Courts below is just and unassailable.

(3.) The result is that the decree of the District Judge is confirmed and this appeal dismissed.