Nalini Ranjan Chatterjee, J.

1. These appeals arise out of suits for rent of two jotes,one comprising 24 bighas and odd and the other 23 bighas and odd.

2. The defence was that all the lands of the jotes haddiluviated and that the defendants were not, therefore, liable for rent. Therewas a local investigation by a Commissioner and it was found that the jotessuffered total extinction on account of diluvion."

3. The lands were held under two kabuliyats for a term offive years, and there was a stipulation that on the expiry of the term a freshsettlement would be taken on enhanced rents. No fresh settlement was taken andthe defendants paid rent for two years (after the expiry of the lease) duringwhich the lands were partly diluviated. They did not pay rent for the years insuit, as the lands were wholly washed away.

4. The Court of first instance dismissed the suit, but hisdecree was reversed, and the suit was decreed, by the Court of Appeal below.The defendants have appealed to this Court.

5. The learned District Judge, differing from the Munsif,held that according to the agreement contained in the kabuliyats the lesseeswere not entitled to claim any reduction of the rent.

6. The jotes consisted of 24 bighas and 23 bighas of landrespectively but they were stated to be tenures in the written statement and inthe judgment of the Court of Appeal below, and the arguments in this Courtproceeded upon that footing.

7. The learned District Judge observes, "Now one ofthese stipulations is to the effect that on no account should the lessees beentitled to claim any reduction of the rent settled under the kabuliyats."The kabuliyat, however, does not contain the words "on no account."All that it says is that "the cultivation or non-cultivation, profit orloss in respect of the jote shall be ours. We shall not be competent to makeany objection to the rent settled". We think that the lessees agreed notto make any objection to pay rent, only on the grounds stated before, viz.,non-cultivation, &c, or similar grounds which presuppose the existence ofthe lands, and not where the lands are entirely washed away, Had it beenintended that the lessees would be bound to pay rent even if the lands werediluviated, it would have been so stated in the kabuliyats. We are of opinionthat the lessees were not precluded by the terms of the kabuliyats frompleading non-liability to pay rent if all the lands of the jotes were washedaway. That being so, we think the defendants are exempted from the payment ofrent for the years in suit.

8. It is contended on behalf of the respondent that as thedefendants were holding over, they were liable to pay rent so long as they didnot surrender the jotes or avoid the tenancy. But rent is paid by a tenant forthe use of land, and if for no fault of his own, the lands are washed away, hecannot, on general principles, be held liable to pay rent. Section 52 of theBengal Tenancy Act provides that every tenant shall be entitled to a reductionof rent in respect of any deficiency proved by measurement to exist in the areaof his tenure or holding as compared with the area for which rent has beenpreviously paid by him. In the present case all the lands of the tenure hadbeen washed away and we do not see why the defendants are not entitled to claimexemption from payment of rent in a suit for recovery of rent. In the case ofAfsarudin v. Musammat Shorashibala Debt Marsh. 558 : 2 Hay 664 Sir BarnesPeacock, C.J., observed:

It was contended that the respondent would not be entitledto any diminution of rent if the land had been washed away. But we think he isso entitled, unless there was an express stipulation that he should pay whetherthe land was washed away or not. If a man stipulates to pay rent, it is clearthat he engages to pay it as compensation for the use of the land rented andindependently of Section 18, Act X of 1859, we are of opinion that according tothe rules of law if a taluqdar agrees to pay a certain amount of rent, thetenant of it is exempt from the payment of the whole rent if the whole of theland be washed away or of a portion of the rent, if a portion only be washedaway. According to English Law a tenant is entitled to abatement in proportionto the quantity of land washed away, and he is entitled to that abatement in asuit brought by the landlord for arrears of rent.

9. Again in Sheik Enayutoollah v. Sheik Elaheebuksh W.R.(1864) Act X Rulings, 42 Sir Barnes Peacock, C.J., held that a tenant, whetherwith or without a right of occupancy, is entitled to abatement of rent for landwashed away, unless precluded by the terms of the kabuliyat from claiming thatabatement and referring to the rule laid down in Bacons Abridgment, 7thEdition, Vol. VII, page 63, that if the use of the thing be entirely lost ortaken away from the tenant the rent ought to be abated or apportioned becausethe title to the rent is founded upon this presumption that the tenant enjoysthe thing during the contract, observed that the rule is founded on theprinciples of natural justice and equity that if a landlord let his land at acertain rent to be paid during the period of occupation and the land is, by theact of God, put in such a state that a tenant cannot enjoy, the tenant isentitled to an abatement.

10. We are accordingly of opinion that the defendants arenot liable for the rents claimed. The decrees of the Court of Appeal below arereversed and those of the Court of first instance restored with costs here andin the Court below.

Thomas William Richardson, J.

11. I agree and merely add that a similar principle isenunciated in Clause (e) of Section 108 of the Transfer of Property Act.

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Rajendra Kumar Roy and Ors.vs. Manindra Chandra Nandy(10.05.1916 - CALHC)