Lancelot Sanderson, C.J.
1. This is a second Appeal from the judgment of the learned District Judge of Pabna.
2. The suit was brought by the plaintiff to recover rent in respect of a putni lease for a period from May 1912 to August 1915. There was a lease at a fixed rate of rent of Rs. 300 per annum of 12 items of property; but when the defendants, the tenants, went into possession it was found that they could not get possession of 2 items of property which were referred to in the judgment as mehals Nos. 7 and 8, and it turned out that these two mehals were the subject-matter of another putni which had been granted by one of the plaintiff's predecessors, the plaintiff herself being a purda-nashin lady. Both the Courts have found that it was purely a mistake and that the plaintiff intended bona fide to grant a lease of the 12 items of property and she sued for the full amount of the rent reserved by the lease. She succeeded in recovering in the First Court a reduced amount of rent: The learned Munsif held as follows: 'The suit is decreed in part with interest at 6 per cent per annum; a calculation will be made of the sum--due for rent at Rs. 300 less Rs. 3-10-0 a year for the period in suit with interest at 12 per cent per annum as agreed upon in the lease; Rs. 47-1-0 with interest at 12 per cent per annum fron 16th Falgoon 1318, the date of the lease to the date of the suit will be deducted from the amount arrived at on the basis given above and the plaintiff will have a decree for the balance, with half the proportionate costs.'
3. Thereupon, the defendants appealed to the learned District Judge and he upheld the decision of the learned Munsif. The argument which was presented to the learned Judge was that inasmuch as the< plaintiff, the landlord, was not able to put the defendants tenants into possession of all the properties which were the subject-matter of the lease, either the lease was totally, void or, at all events, the liability to pay rent was suspended until the plaintiff put the defendants into possession of the two mehals Nos. 7 and 8. The learned Judge came to the conclusion that under Section 52 of the Bengal Tenancy Act the tenants were entitled to a reduction of rent for any diminution of area and that there was no law that the tenant might withhold payment of rent altogether because of a diminution of the area' of the tenure. I agree in the conclusion at which the learned Judge arrived, But I prefer to put the reasons of my conclusion in a different way to that in which the learned Judge put it. In my judgment, the decision in this case rests upon the facts which are peculiar to this case. In my judgment, by their written defence the defendants claimed that there should' be a reduction of rent by reason of the fact that they had not been put into possession of mehals Nos. 7 and 8 and that the rent should be apportioned by the Court which tried the suit. The learned Vakil, who appeared for the defendants, contested the proposition that the defendants had asked for a reduction, but he agreed that if this Court were to hold that the true position was that the defendants bad asked for a reduction, then Section 52 of the Bengal Tenancy Act would apply. In my judgment, the proper construction to put upon the written statement is that the defendants were contending that they could not be made liable for the rent until an enquiry had been made as to what reduction should be made upon a proper apportionment. Consequently, in my judgment, Section 52(1)(b) of the Bengal Tenancy Act was applicable and it was open to the Court to enter upon an enquiry as to what deduction of rent should be made in respect of the deficiency in the area to which I have already referred.
4. The learned Vakil for the defendants further pointed out that the reduction which was in tact made in the lower Courts was not made in favour of the defendants upon measurement of the area which was in deficiency, but that it was calculated, in another way and he claimed a remand of this case to the lower Court in order that that reduction should be ascertained by way of measurement. In my judgment the defendants are entitled to that.
5. I regard it as a misfortune that the parties are not able to agree as to what the reduction should tie. It may be that after the parties have heard the result of this appeal and have received the advice, which the learned Vakils will give them, reason may enter into their heads and they may agree as to what the reduction should be, so that there may not be any more money spent upon this litigation. But if they do not agree, then we direct that the case should be remanded to the lower Appellate Court in order that it may assess the reduction which ought to be allowed to the defendants, in accordance with the provisions of Section 52(1)(b) of the Bengal Tenancy Act: the plaintiff will be entitled to recover the rent specified in the lease subject to such deduction as may be agreed upon or as may be found by the lower Appellate Court on remand.
6. We further direct that the defendants tenants should deposit in the Court below the sum of Rupees one thousand which would represent a portion of the rent due from the defendants to the plaintiff in respect of the period referred to in the claim. The amount is to fee deposited in the lower Appellate. Court within a month from the receipt of the record by that Court and will be subject to the order of the learned Judge. In the event of that money not being deposited within the time fixed, this appeal, will stand dismissed.
7. We make no order as to the costs of this appeal. The costs of the lower Courts both before and after the remand, will be in the discretion of the lower Appellate Court.
8. We direct that the record be sent down as soon as possible.