B.B. Ghose, J.
1. This appeal arises out of a suit for rent on account of a putni which was held by the defendants under the plaintiffs. The plaintiffs stated they have howla interest in four mouzas appertaining to a certain number of taluks, and the defendants' putni is under the howla. The defendants pleaded that under a partition between the zemindars of the taluks, held under the Estates Partition Act they have lost possession of lands they held under the putni in one of the mouzas called Khidirpara and they are entitled to abatement of rent on account of those lands being taken away from their possession the plaintiffs alleged that by the partition neither they nor their lessees, the defendants, could be deprived of any land as in their case the provision of Section 99 of the Estates Partition Act was inapplicable; and they further pleaded that under the terms of the kabuliyat the defendants wore not entitled to abatement of rent.
2. The Munsif made a decree for abatement of rent to the extent of Rs. 22. There were two appeals : one by the plaintiffs and the other by the defendants. The defendants alleged that they were not bound to pay interest on the arrears of rent according to the rate stipulated in the kabuliyat; and the plaintiffs appealed against the decree reducing the rate of rent stipulated in the kabuliyat. The Subordinate Judge decreed the appeal preferred by the plaintiffs and dismissed that preferred by the defendants. He held that under the terms of the kabuliyat the defendants were not entitled to abatement of rent on any ground and he further held that Section 99 of the Estates Partition Act (V of 1897 B.C.) did not apply to the case and, therefore, the defendants could not have been lawfully deprived of any portion of the land by the partition made by the Collector. He also held that the defendants are bound to pay interest at the stipulated rate. In that view he decreed the plaintiff's' suit in full. On appeal by the defendants before us it is contended that the Subordinate Judge was wrong in holding that upon a true construction of the pottah the defendants are not entitled to claim any abatement for being deprived of a portion of the lands in their possession. The passage referred to by the Subordinate Judge runs thus:
You will not be able to claim reduction of the fixed rent at any time on any ground whatsoever, I and my heirs and representatives shall not be able to demand greater amount of rent than the fixed rent at any time on any ground whatsoever.
3. At the end of the pottah there is a provision for surrender of the lease. It seems to be quite clear that the parties stipulated that on no ground there should be any reduction or increase of rent; and if the defendants felt any hardship it was open to surrender the lease. On the second ground it seems to have been found by the Subordinate Judge that by a private arrangement between the owners of the different estates in which the howla was situated each of the owners was in separate possession of different pieces of lands in different mouzas and the Subordinate Judge has held that the lands of the several mouzas were held in severally. Section 99 of the Estates Partition Act only applies where the estate is held in common tenancy and has no application where the lands are held in different parcels by the proprietors. Under such circumstances the defendants could not have been lawfully deprived of their possession of any portions of the lands which were let out in putni to them by the plaintiffs. On those grounds the appeal must be dismissed with costs.
4. I agree.