1. This appeal is the outcome of a protracted litigation between the parties. The matter has already been before this Court on more than one occasion. The suit out of which the appeal arises was instituted as long ago as the year 1917. It was a suit for the recovery of arrears of rent brought by the plaintiff as one of a number of cosharer landlords, his case being that by reason of a purchase which was made by his father he was the owner of something like l/7th share in the lands of a certain chak. Put shortly, the plaintiff's case came to this: that the defendants' predecessor-in-title had in the year 1851 taken settlement of an area of land under the terms of three pattas. In two of those pattas (the third one not being produced in these proceedings) the area of the land was stated to be respectively 501 and 601 bighas. At the time when the suit was instituted the defendant was said to be in possession of an area of land considerably in excess of 8,000 bighas. The plaintiff accordingly is claiming not only rent which was owing in respect of the area said to have been demised under the three pattas but also rent at the stipulated rate in respect of the additional area said to be held by the defendant. That is to say, the plaintiff was claiming his portion of rent he being, as I have said, the owner of something like l/7th share of the total rights of the lessors. The plaintiff based his case mainly, if not entirely, upon two considerations. He said that the defendant was already paying additional rent to the cosharer landlords in respect of the additional area said to have been occupied by the defendant. The plaintiff also relied upon the fact that the defendant in certain proceedings between him and these other cosharer landlords and also on other occasions had made admissions to the effect that he was in fact holding a quantity of land amounting to more than 8,666 bighas and it was upon that footing that these proceedings were brought. In the original trial before the Subordinate Judge of Mipur a decree was given to the plaintiff for the amount of rent outstanding in respect of the area of land originally supposed to be demised under the three pattas to which I have already referred. The case then went on appeal to the Additional District Judge of the 24-Pargannas when the decision of the Court of first instance was upheld and the appeal dismissed. From that decision the plaintiff appealed to this Court and the matter came before a Bench composed of Chatterjee and Cuming, JJ., in the month of March 1923. In the course of their judgment the learned Judges said:
The Courts below have held that in the absence of the third lease, the area cannot be determined and that the plaintiff cannot rely upon the fact that his cosharers have been getting rent upon the footing of the land being 8,666 bighas, because there was some special agreement between the defendants and these cosharers. It is mainly upon these grounds that the claim of the plaintiff in respect of additional rent for excess area has been disallowed and ho has been given a decree for rent at the admitted rate.
2. The learned Judges then said:
It is true that there were certain statements made by the defendants or their predecessors-in-title to the effect that the lands held by them in the chak amounted to 8,666 bighas. But there is nothing to show how much of these lands is comprised within each of the settlements. In these circumstances, the plaintiff is not entitled to succeed merely upon the admission of the defendants.
3. Had the judgment stopped there, it seems to be tolerably clear that the Court would have dismissed the appeal off-hand upon the footing that the judgments given in the Courts below and the reasons for those judgments were correct. But the judgment in this Court proceeds thus:
He (the plaintiff) must show what the area the land covered by each settlement was and cannot be done except by measurement. The Court of first instance, it appears, gave the parties an opportunity of having the lands measured: both parties declined to have any measurement.
4. We are now told, and it does not seem to be disputed by the learned advocate who appeared for the appellant, that when the plaintiff realised that he could not succeed except upon the basis of having the lands measured he made a belated application in the course of the hearing and for the first time in this Court that he should be allowed to have a measurement of the land with a view to ascertaining whether the area now held by the defendant was in fact in excess of the area mentioned in the pattas under which the land had originally been granted. This Court acceded to that application and we find that the judgment of this Court proceeds thus:
It is stated on behalf of the appellant that ho did not apply for measurement as he relied upon the admissions of defendants and upon the fact that his cosharers had 'been realising rent on the footing that the lands of the chak' amounted to 8,666 bighas. He now prays that he may be allowed to have the land measured on payment of costs to the opposite party. We think, having regard to all the circumstances of the case, that this may be allowed, but only upon terms. The case will accordingly go back to the Court of first instance. The Court will, at the instance of the plaintiff, have the lands of the entire chak measured and the additional area, if any, in respect of the land covered by the two pattas found out on measurement. It will then fix the rent of the lands covered by these two pattas according to the terms of the settlement As regards the lands for which no patta has been produced the plaintiff will not be entitled to any excess rent as we do not know the terras of that settlement.
5. Once more, if the judgment had stopped at that point, one would have said that the order of this Court was intended to direct that there in fact should be a measurement of the lands and that the defendant should be required to pay additional rent upon the basis of whatever additional area might have been found to be in his occupation after such measurement had been taken. But the judgment did not stop at that point. Lower down we find this order:
In these circumstances, the Court of first instance will consider this question with reference to the terms of the leases, and if it finds that the plaintiff is entitled to have the lands measured it will appoint a commissioner for holding a local investigation and then dispose of the case according to law.
6. Later on in the judgment it is stated that the plaintiff would be entitled to rent at the rate stipulated, upon any additional area which might be found on measurement. Looking at this judgment as a whole therefore it seems to come to this; that upon reconsideration this Court came to the conclusion that the plaintiff should have a further opportunity of establishing his case if he could, by taking of a measurement under the terms of the two pattas, if the Court of first instance to which the case was remanded considered that the terms of the pattas themselves permitted a measurement being taken at such a late date. The judgment in fact amounts to this: that the plaintiff was not entitled to succeed in his claim for any additional rent unless he was entitled to have a measurement of the lands under the terms of the pattas themselves. That was the state of affairs when the matter again came before the trial Court. The case was reheard by the learned Subordinate Judge, 3rd Court, Alipur. He, after considering the terms of the pattas in question, came to the conclusion that the plaintiff was not precluded from having measurement taken under the terms of the pattas and he accordingly appointed a commissioner to make the necessary measurement and in effect to re-lay the map of the area which had been demised by the pattas. From that decision there was an appeal to the District Judge of 24-Parganas. He, in his judgment, dated 18th April 1929, upheld the decision of the learned Subordinate Judge with some slight modification which is not material for our present purposes, The result of the decision of the lower appellate Court was that it was held that the plaintiff was entitled to an appropriate share of rent at the rate provided for in the two pattas in respect of the whole of the land found on measurement to he in the occupation of the defendant. This for all practical purposes was found to be the amount which I have already mentioned; that is to say, something over 8000 bighas. The learned District Judge dealt at considerable length and very adequately with the question of what was the right construction to put on the material clauses in the two pattas, and after discussing the matter he came to this conclusion:
Reading the leases as a whole I am of opinion that it was not the intention of the parties that the right (i. e., to measure) was to be exorcised within any particular time. The times stated in the leases seem to me to be mentioned to mark the starting point in time of the right to measure and assess the additional rent, and not for the purpose of otherwise limiting what is prima facie a recurring right. I thing therefore that although more than 70 years have elapsed since the granting of the leases, the right to measure and assess the rent is still alive.
7. The learned advocate who has argued this point before us on behalf of the plaintiff (the respondent in the present appeal) accepts the position that the question which we have to determine is whether or not that view of the learned District Judge is correct. He agrees that the case rests entirely upon the question of whether or not under the pattas there is now a right to measure. He has excluded from the plaintiff's case any suggestion that the plaintiff is entitled to recover khas possession either by reason of the fact that the defendant has been paying a sum as additional rent to the other cosharer landlords or because the defendant has made admissions from time to time as to the area of the land actually held by him. This attitude on the part of the learned advocate for the respondent has clarified and simplified the position and made our task comparatively simple. The only point for our determination thus being whether under the terms of the two pattas the plaintiff was entitled to have a measurement. In order to solve that question it is, of course, necessary to examine the material portion of the pattas themselves. First in order of time is the lease granted by Sham Chand Ghose and others to Ruplal Mittra on 14th Baisakh 1258 of the Bengali year corresponding to 27th April 1851. It is to be observed that this lease as also the other leases are junglebari leases and it is clear that the land which was demised under this lease and under the second lease was land covered with dense jungle: a fact which may have rendered it difficult at the time to ascertain precisely what the area comprised within the boundaries specified really amounted to. Under the first lease there was a grant of an istemrari maurashi chakdari settlement of about 501 bighas of dense jungly lands within the boundaries mentioned in the lease. Then follows this provision:
You shall enjoy it rent free for twelve years from 1258 B.S. to 12G9 B.S. Thereafter you shall pay progressive rent (rasad) at the following rates, viz., at the rate of 1-anna, per bigha in 1270, 2 annas per bigha in 1271, 3 annas per bigha in 1272, 4 annas per bigha in 1273, 5 annas per bigha in 1274, 6 annas per bighasin 1275 B.S. and at the full rate of 7 annas 9 gandas 1 kara per bighas in 1276 B.S. and every year there after.
8. It seems therefore that for the first 12 years the land was to be held free of any rent. For the next 7 years it was to be held at a progressive rent increasing year by year until eventually the full rate which I have mentioned came into operation. It appears clear that the intention of the parties was that the lessee should have a reasonable period in which to clear and prepare the ground for cultivation: so in the earlier stages he was to pay no rent; then, only a small progressive rent, and then after a lapse of such time that it might be presumed that the lessee had done all that ho reasonably could in the way of clearing or preparation of the ground the full rent should become payable in respect of the 501 bighas said to be demised under the lease. The material provision with which we are immediately concerned is this:
After the expiry of the rent free period you (the lessee) shall cause a survey of the lands within the said boundaries to be made by an officer of our estate, and after deducting all fallow lands such as those covered by embankments, excavations, bhagars, graveyards, pasture grounds, khals, etc., you shall get an abatement at the said rate for any area which falls short of the area stated in the patta, and shall pay additional rent for any area in excess thereof.
9. Before I proceed to express any opinion in regard to the interpretation to put upon that clause I must refer to the terms of the second lease. In that lease the parties were the same and it was dated 7th Chait 1258 B. S., corresponding to 19th March 1852. The land demised under that lease was of the same character and situated contiguously to the land demised under the first lease and the area was stated to be in total of 601 bighas. This lease also contained a provision with regard to a rent-free period although in this case it was six years only and a provision similar to that in the first lease for the payment of progressive rent for seven years, and finally for payment of full rent at the rate of 7 annas 9 gandas 1 kara per bigha which is the rent stipulated for in the first lease. The material clause in this lease is slightly different from that contained in the first lease. It is in these terms:
After the rent-free period is over and in the beginning of the period of progressive rent, the entire lands situate within the different boundaries shall be measured, and deducting therefrom all unculturable lands, viz., those covered by embankments and excavations and khals and bhagars and graveyards and pasture grounds etc., if any excess lands are found such excess lands shall be assessed to additional rent at the specified rates according to the boundaries stated above, and abatement at those rates shall be allowed for any deficiency in area.
10. I ought also to refer to a further stipulation in this second lease which is to this effect:
Besides the above rent there shall never be payable any abwabs, neither shall we demand any enhancement of rent even by a single courie.
11. That provision seems to reinforce what had already been stated with regard to the payment of rent. Looking at these clauses with regard to the measurement in both these leases it is observed that in general outline they are similar. The provision in the second lease is rather more definite and stronger than the provision in the first lease, because it not only says that after the rent-free period is over the entire lands shall be measured, but there also is the additional provision that it is to be measured at the beginning of the period of progressive rent. So far as that condition is concerned at any rate, we are of opinion, that there can be no doubt whatever but that the intention of the parties was, that after the lessee 'had an opportunity of clearing the lands and so forth, and before he should be called upon to pay any rent at all, a measurement should be taken for the purpose of ascertaining whether or not the area of the land measured in the lease was accurate. So far as the first lease is concerned the provision is this;
After the expiry of the rent-free period you shall cause a survey of the lands within the said boundaries.
12. We are of opinion that, although there is not a reinforcing clause in the first lease, nevertheless the intention of the parties in that case also was that there should be a measurement at the end of the rent-free period and before the lessee was called upon to pay rent at all in order that it might be ascertained what was the precise area in respect of which rent should be paid at the rate stipulated for. The clauses in both leases with regard to the deducting of certain portions of the land which were in their nature not cultivable, if it seems to fix the time for measurement, that is to say, rent was to be paid on the basis of the nature of the estate at the time when rent first became payable. As I have already pointed, out the learned District Judge, agreeing with the learned Subordinate Judge took the view that the relevant clauses in the leases merely indicated the starting point of the right to measure and did not fix any, if I may so put it, finishing point to the right of measurement. Now, apart from any question of limitation and even if the terms of the lease had not been so definite as they were, we are of opinion that it would have been incumbent on the lessor to exercise the right of measurement within a reasonable time after the rent-free period had in fact expired. In this case however the actual terms of the clauses are in our view sufficient to determine that the right was intended to be exercised at one particular period in the history of the relationship of the parties and not at any subsequent period. It was argued before the learned District Judge and it has been pressed before us that the right to measure is a recurring right which no lapse of time can affect. It seems a little startling to have it suggested, and still more startling that it should have been found by the learned District Judge that an effusion of time which already amounted to no less than 70 years of time at the time the suit had been started should have no effect on the right of the parties in a case of this kind. The learned District Judge seems to have been influenced in his decision by the case of Jotindra Mohan v. Chandra Nath Sa fui [1902) 6 C.W.N. 360. That case was relied upon also by the learned advocate who appeared for the respondent as being an authority for saying that the right to recover additional rent is a recurring right and that the landlord is entitled to exercise that right 'whenever he finds it necessary to do so. It is to be noticed however that in that case proceedings had been brought under the provisions of Section 52, Ben. Ten. Act, 1885. Proceedings under that section were, of course, available to the landlord irrespective of any special contract between the parties if proper proceedings were taken; but then it is necessary to make all cosharer landlords parties to the proceedings. The learned advocate for the respondents admits that in this particular case he cannot pray in aid Section 52, Ben. Ten. Act. Moreover in the case of Jotindra Mohan v. Chandra Nath (1) there was no particular date fixed for measurement in the kabuliyat under which the landlord was entitled to sue for increased rent. As no particular date was provided for in that case it is obvious that the decisions there are of no assistance to the respondents in the present appeal. On the other hand there is the case of Prasanna Moyee v. Doyamoyee Dassee  23 W.R. 275 where it was held that in a suit for abatement of rent founded on an agreement that at a certain time the land should be measured and if found less than the quantity named in the agreement there should be an abatement and it was found that the plaintiff had never required a measurement but had continued to pay the rent six years, the suit was barred by limitation the cause of action having arisen when the zamindar continued to take rent according to the quantity of land named in the agreement. In the course of the judgment the learned Chief Justice Sir, Richard Couch said:
We think that the suit is barred by the law of limitation. The cause of action arose when the contract that there should be a new measurement was broken. At what precise time in 1269 it may be said to have been broken we need not determine. It must be said to have boon broken when the zamindar continued to take from his tenant the rent according to the quantity named in the agreement, because he then showed that he did not intend to make any fresh measurement. And the agreement does not say that the measurement is not to be made until demanded, but it was to be made at the time appointed. There was then a breach of the agreement and a cause of action; and the time limited by the then law for bringing the suit was three years from the date of the cause of action, which had expired before the plaintiff made his purchase. There is not a fresh cause of action for every year. The contract is not to measure in 1269 or at any future time when it may be demanded by the tenant, but it is a contract to measure at that time and the omission to do so created a cause of action.
13. The learned Chief Justice then continues thus. But oven without the law of limitation the circumstance that the plaintiff's vendor had had for six years paid the rent without insisting upon the right to measure might perhaps be a ground for saying that the agreement had really been abandoned by the parties, that the tenant had waived his right of insisting upon any measurement and was satisfied to continue paying the rent according to the agreement. The present case is in a way the converse of the case to which I have just referred. But it is analogous in this respect, that there was a definite time appointed at which measurement was to take place and as no measurement did take place at that time or no attempt was made on the part of the lessor or his successor-in-title to insist upon the measurement for a long period of time. After such a long lapse of time as the 70 years in the present case no question can possibly arise as to what should be the appropriate period of limitation in the technical sense. If the law of limitation is to apply at all upon the footing that the cause of action arose immediately after the contract was broken in the sense that the measurement did not take place at the appointed time then it is obvious that whatever period of limitation might have been appropriate, that period had long since elapsed at the time when this suit was instituted. Further we are of opinion that the additional ground suggested by the learned Chief Justice in Prasanna Moyee Dassee v. Doya Moyee Dassee  23 W.R. 275 (ubi supra) does have effect in a case of this kind and it can properly be said that the rights given by the agreement, that is to say, the provisions with regard to measurement, had long since been abandoned by the lessors. The landlords by accepting rent upon the footing that the area was as stated in the paitas and at the rates stipulated for in the patta over a long period of years must be taken to have} precluded themselves from requiring any such measurement at the time of the institution of the suit. For these reasons we are of opinion that the decision of the Court of appeal below on the question of whether the plaintiff was entitled to measure or not was wrong, and as this was the only point left open in the case, this appeal must be allowed. The decree of the lower appellate Court will be set aside in so far as it allows the plaintiff any additional rent over and above the amount of rent for which a decree was made at the original trial. The appellant will. have all his costs since the remand.
14. I agree.