1. This appeal arises out of a suit for recovery of arrears of rent. The defence inter alia was that the defendant was entitled to a reduction of the jama as admittedly a portion of the holding had been acquired by Government and that the cess which the plaintiff had claimed was excessive the plaintiffs having claimed cess at the rate of 21/2 annas in the rupee whereas according to the defence it should have been only six pies in the rupee. This defence found favour with the first Court and the trial Judge gave a part-decree to the plaintiffs in accordance with the case for the defence. In appeal, the lower appellate Court set aside the judgment and decree of the Court of first instance and gave a full decree to the plaintiffs. The defendant has come up to this Court in second appeal.
2. The first point that arises for consideration is whether the defendant was entitled to a proportionate reduction of the jama. The learned Subordinate Judge could not allow any reduction of the jama principally on two grounds. One of these grounds was that there had been nothing in the patta under which the land was held to show that the defendant would be entitled to a reduction of the jama in case there would be a reduction in the area of the holding. I do not see how that ground can be sustained. Section 52, Ben. Ten. Act, gave a statutory right to the defendant to have his jama reduced when there was a reduction in the area of the holding. Then as regards the absence of any stipulation in the patta on the question of reduction of rent it is true that in creating a permanent tenure (as the tenure in the present case is) an agreement with a tenant to deprive him of the provisions of Section 52 is valid; but that agreement must be stated in clearness Umesh Chandra v. Mati Lal : AIR1924Cal880 . In the present case, as I have stated before there was no stipulation in the patta that the defendant would not be entitled to any reduction of rent even if there would be a reduction in the area of the holding.
3. The second ground on which the learned Subordinate Judge refused to allow a proportionate reduction of rent to the defendant was that as the land had originally been let out on two pattas in which there were two different rates of rent given no reduction of rent was possible under the ordinary rule of three. But it appears that the defendant in an additional written statement gave full details of the two holdings as created by the two pattas and also of the subsequent amalgamation of them with an average rate of Rs. 3-1-6 per kani. The plaintiffs in no part of their case challenged these allegations as they are to be found in the schedule attached to this additional written statement. In these circumstances and remembering also that the point of the present average rate was never raised in the Court of first instance I am of opinion that the learned Subordinate Judge was not justified in raising that point and in making it one of his grounds for refusing the defendant a proportionate reduction. The two grounds on which the lower appellate Court refused to allow any proportionate reduction in the rent are both, in my opinion, unsustainable and I am of opinion that the defendant was in the circumstances of the case entitled to a reduction of the jama as claimed by him.
4. There was another point urged before me and that was about the amount of cess allowed to the plaintiffs. The plaintiffs were allowed by the lower appellate Court an amount of cess as it is to be found in the settlement khatian. The learned vakil for the appellant contended that this wa3 not proper inasmuch as the Cess Act does not allow any rate higher than six pies in the rupee. But the rate as laid down in the Cess Act is not the only factor in determining the amount of cess. There is another factor in determining it and that factor is the valuation roll. The rate of cess at Rs. 3-6-4 per year, as it is to be found in the settlement khatian, must be presumed to be correct and as observed by the learned Subordinate Judge there was nothing in the present case which rebutted that presumption. The rate at which the lower appellate Court has allowed cess to the plaintiffs must, therefore, stand.
5. The result, therefore, is that the appeal is allowed in part. The plaintiffs will get a decree for rent at the rate admitted by the defendant. But they will get cess at the rate as it is to be found in the settlement khatian after making a proportionate reduction in the sum as in the case of the rent. I make no order as to costs in this appeal as no one put in 'any appearance on behalf of the respondent at the time of the hearing. The costs in the lower Courts will be in proportion to the success and failure of the parties.