1. The appeal arises out of a rent suit. The plaintiffs are the appellants, and the question which arises is whether the defendant is entitled to abatement of rent on account of the diluvion of some of the lands leased to him. Several rulings have been referred to but there seems to be no doubt in the law on the point. In the case of a permanent tenure like the present the parties to a lease can make a contract the result of which would be to deprive the tenant of the benefit of Section 52 of the Bengal Tenancy Act. The question we have to decide in this case is whether by their contract the defendant was deprived of this statutory advantage. The relevant words used in the kabuliat are : - 'there shall never be any decrease or increase of the rent fixed in the kabuliat.' This appears to us to be a condition usually expressed in a permanent lease at a fixed rate of rent. We are unable to accept the contention advanced on behalf of the appellant that by this clause in the lease the parties intended that the tenant should be deprived of the advantage he claims in the present suit. When parties by an agreement intend to make a contract which will override the provisions of a statute it is their duty to state this with clearness. This is the only point of law which arises in the present appeal.
2. It is contended that the lower appellate Court was wrong in holding that the area leased to the defendant was assumed to be 230 bighas. But this is a pure question of fact.
3. The appeal is dismissed with costs.