BIRESWAR BANDOPADHYA Vs. JOGENDRA NATH CHAKRABARTY

JUDGEMENT

(1.) The suits out of which appeals Nos. 31, 33, 34, and 35 have arisen were commenced by the tenants praying for abatement of rent on the-ground of decrease in area of the tenures covered by the suits on account of diluvion. The first Court held that the plaintiffs tenants had been able to prove that the area in each case, for which rent had been previously paid by them was larger than the area in their possession at the time of the commencement of the suits and that the deficiency in the area was due to diluvion. The learned Munsifi stated that there was no document forth- coming from which the original area, that is, the area at the time of the in- -option of the tenancy could be found out and that there were no materials whatsoever, on the record by which the axtent of the original area of the tenures could be traced. He also stated that the plaintiffs had been able to produce before him the Record-of- Rights which showed that the recorded area in the possession of the plaintiffs at the time of such Record-of-Rights, namely, in 1907 was larger than the area found, by the commissioner who had been appointed to measure the land, in the possession of the plaintiffs. The question then arose as to whether the fact that the tenants .had been unable to show what the area was at the time of the inception of the tenancy would have the effect or barring relief to the tenants in the circumstances referred to above. The first Court observed as follows ; Abatement on the ground of decrease in area due to diluvion is an ordinary incident of a tenure and my opinion is that the tenant is entitled to some relief on this score only if it can be shown that at some date prior to the institution of the suit the tenant paid rents for a larger area than in existence at present. This does not injure the landlord at all and it is he who profits by the tenant's failure due to ignorance to establish the original area. The original area which was surely greater than the area taken as the .starting basis for calculation being not- taken into account the proportion to which the tenant is entitled is increased to the advantage of the landlord. For the purposes of the suits, I am thus inclined 6o take the areas noted in the settlement records as the basis of my calculations. The records were prepared long ago and it can be presumed that the tenants are paying the recorded rentals for the recorded area.

(2.) The first Court then went into an elaborate calculation showing what the recorded area in the possession of the plaintiffs was as tenants in the Record-of-Rights and what the area found by the Commissioner in their possession was and gave them the appropriate relief on the basis of the difference of the two areas referred to above. The lower appellate Court to which appeals had been -carried by the defendant landlord in the above circumstances held that the tenants having failed to prove the area for which rent had been previously paid by them and the Munsiff having failed to find out whether the rent was a consolidated rent for the entire tenure disallowed the abatement granted by the Munsiff. Against this decision of the lower appellate Court the plaintiffs tenants have preferred appeals Nos. 31, 33, 34 and 35.

(3.) In appeal No. 32 which arises out of Suit No. 151 of 1925, the plaintiff was the landlord and the tenants were the defendants. In that suit which was a suit for rent, the lower appellate Court granted a decree to the landlord for the amount of the rent claimed and refused to grant any abatement whatsoever.