RAJ KUMAR MISSRA AND ON HIS DEATH HIS HEIRS AND LEGAL REPRESENTATIVES NARAIN CHUNDRA MISRA Vs. RAMA NATH SINGH

JUDGEMENT

(1.) These two appeals are preferred by the defendant against a judgment of the learned Additional District Judge of the 24-Pergannahs modifying the decision of the Munsif of Baruipur. The suits were brought for rent by the landlords. The defence was that there was a deficiency in the area demised and that, therefore, the tenant was entitled to abatement. The defendant s holding is governed by a permanent lease, and by that permanent lease was let out a piece of land described as a plot of 1,000 bighas then in a jungly state rent free for six years and thereafter at a progressive rent rising in the year 1305 to 8 annas per bigha. The lease provided: "I shall pay Rs. 500 every year according to the kists stated below and shall hold with sons, grandsons", etc., the ordinary form. Then the lease provided: After the rent- free period and the period of progressive rent are over, on a measurement being made with a claim of 80 cubits, each cubit measuring 18 inches, for the land found to be in excess I shall pay additional rent at the above rate from the time of the measurement and shall from that time get an abatement of the above rate for the land which is found to be less. I or my heirs or successors shall never have to pay any additional jama for the above lands and you or your heirs and successors shall never receive or be entitled to receive any addi tionaljama." The point that has been raised is this: It is said that, on a measurement being made, it was found that the tenant was not in possession of 1,000 bighas. The question is, whether on the construction of the lease on the contract that the tenant had entered into, namely, to pay Rs. 500 for the piece of land being let and appertaining to Gheri No. 11 as per boundaries stated below, what was demised was with a fixed rent of Rs. 500 with option to either party at any time after, the expiration of the rent-free period and the period of progressive rent to apply to have a measurement made and the actual amount of rent adjusted, or whether the land was let out at the rate of 8 annas per bigha subject to deduction on account of the diminution in area. Upon a proper construction of the lease, it appears that until one or other of the parties applied for a measurement the rent was fixed at Rs. 500 per annum.

(2.) The next point that was raised was that the case was governed by Section 52 of the Bengal Tenancy Act and that the terms of the lease, so far as it was attempted to make the tenant pay rent for more land than he was in possession of, were in excess of the powers given by the Bengal Tenancy Act. This is a case to which Section 52 does not apply because it is a permanent lease. Under the terms of that lease what was demised was this land lying within the boundaries mentioned in the schedule to the lease at Rs. 500 per annum, with option to the tenant or the landlord to have an actual measurement made of the land, and until that was done the tenant had to pay at the rate mentioned; and it was provided that either party might apply for a measurement. When the measurement is made, the tenant, of course, gets the benefit of Section 52 of the Bengal Tenancy Act, if the measurement shows that the land is less, than 1,000 bighas and the landlord gets the benefit if it is shown that the land is more than 1,000 bighas. I think the learned Judge of the lower Appellate Court was right in holding that the land was let out to the defendant at Rs. 500 a year until a measurement was made. In that view I think the decrees of the lower Appellate Court are correct. The present appeals, therefore, fail and must be dismissed with costs. Newbould, J.

(3.) I agree.