B.K. Mukherjea, J.
1. This appeal is on behalf of the plaintiff and it arises out of a suit for recovery of arrears of rent and cesses in respect of a tenancy which previously bore a rental of Rs. 74-13-0 a year. The plaintiff's case was that there being an increase in the area of the tenancy, the tenants agreed to pay rent at the rate of Rs. 90-8-3 a year amicably and that was the rate at which rents were sought to be recovered from the tenants for the period in suit. In the alternative the plaintiff's ease was that even if no such amicable arrangement was proved, he was entitled to an increased rent for excess area on the basis of the kabuliat which created the tenancy and the total rent payable on the present area of the holding-would be Rs. 100-14-0. The defendants in their written statement denied that they ever agreed to pay any increased rent and contended inter alia that there was no increase in the area of the tenancy and that they held the lands in suit at a consolidated rent of Rs. 74-13-0 a year.
2. Both the Courts below disbelieved the plaintiff's story that the defendants agreed to pay rent at the rate of Rs. 90 and annas odd a year. It was found also by both the Courts below that the tenancy was created by a kabuliat of the year 1986 B. S. under which a quantity of land measuring 11 kanis and 14 gandas was let out to the defendants' predecessors at a rental of Rs. 74-13-0 a year. The rent was assessed not on this entire area but upon 10 kanis of land, the balance of 1 kani and 14 gandas being left out of account as it was unproductive and yielded no produce. The kabuliat contained a recital that if on remeasurement of the land, any excess area was found, increased rent would have to be paid at the kabuliat rate or at the rate payable for adjoining lands, if the same be higher. The plaintiff's case was that the measurements made during the cadastral survey operation showed that the area of the holding was 1608 acres which was equivalent to 13 kanis and 8 gandas. There has thus been an increase by 3 kanis 8 gandas; the rent being previously assessed on 10 kanis of land, and the rent that he would be entitled to for the excess area at the kabuliat rate would be Rs. 25 odd annas a year.
3. The trial Court held that there was no evidence that the quantity of land measuring 1 kani and 14 gandas, which was left out as unproductive at the time of the settlement had since then been reclaimed. The original area of the holding must therefore be taken to be 11 kanis and 14 gandas, and to find out the excess, what should be deducted from the present area was not 10 kanis, but 11 kanis and 14 gandas. The Munsif further held that some allowance should be made for close measurements and a reduction of 10 per cent. from the apparent excess was taken to be a fair and reasonable allowance on that account. The Munsif accordingly held that the real excess was 1 kani and 14 gandas and for that, proportionate rent at the kabuliat rate was Rs. 11-3-0 a year. The result was that the Munsif decreed the plaintiff's claim for rent at the rate of Rs. 86 a year. There were appeals taken against this decision by both the plaintiff and the defendants. The Subordinate Judge, who heard the appeals modified the judgment of the trial Court and held that 10 per cent. deduction should be made not out of the excess as was done by the Munsif, but it must be made from the total area that was shown in the record of rights and on that calculation the real area of the holding at the present day would be 12 kanis and 1 ganda. The plaintiff, therefore, was entitled to get additional rent for the additional area of 7 gandas only and the Subordinate Judge gave the plaintiff a decree for rent at the rate of Rs. 77-8-0 a year. It is against this decision that the present second appeal has been preferred to this Court.
4. Mr. Choudhury, who appears in support of the appeal has not challenged the mode of calculation adopted by the Subordinate Judge. He has conceded that if any deduction is to be made, it must be made out of the entire area and not from the apparent excess. He contends, however, that the Courts below erred in law in allowing any deduction at all when there was no evidence or finding that the previous measurement, on the basis of which the settlement was made, was in any way inaccurate or wrong. In support of this contention he has referred us to the decisions in Chundi Churn Law v. Balaram Gope ('26) 13 AIR 1926 Cal 616 and Baidya Nath v. Jawahir Mandal ('14) 1 AIR 1914 Cal 451. Mr. Roy, who appears for the respondents has on the other hand contended that the Courts below were quite right in making the allowance and he has relied in support of his contention upon a decision of this Court which is to be found in Jaynuddin Sheik v. Ramesh Chandra Roy ('35) 40 CWN 1022.
5. To us it seems that the question is really one of fact and not of law. Before the Court allows the plaintiff any additional rent for any additional area, it has got to come to a finding as to what the extent of the increase is. If the standard of measurement is the same, prima facie the apparent excess must be taken to be the real excess. But when, as in the present case, the subsequent measurement is made by trained surveyors in a scientific way, whereas the previous measurement was a private measurement made by the landlord many years before, without the aid of any scientific instrument, it would, we think not be improper for the Court to make some deductions from the survey area with a view to reduce the two areas to a common standard for comparison. The kabuliyat in the case before us was executed more than 60 years ago, and as is well known, the landlords in making the measurements do not ordinarily take into account the boundary Ails. They also do not follow any scientific method in the measurement of irregular and ill-shaped plots. The Ails are, however, taken into consideration in cadastral survey and for the closeness of the cadastral measurements, the technical rules and instructions of the Settlement Department provide for an allowance of 10 or 5 per cent. as the circumstances require. It seems to us that in the absence of any better materials, it would be proper for a civil Court to adopt as a matter of practice the rules laid down by the settlement authorities according to which a deduction of 1 cotta per bigha is allowed when the original measurement is proved to have been done with more than usual accuracy and in all other cases a deduction of 2 cottas per bigha is permitted. We do not agree with the broad proposition of law laid down by Chakravarty J. in Chundi Churn Law v. Balaram Gope ('26) 13 AIR 1926 Cal. 616 that no deduction could be allowed unless and until it is proved affirmatively that the previous measurement was inaccurate. As I have already said, the earlier measurement need not be proved to have been faulty or erroneous. But as the same method was not employed in the two measurements, and one of them was scientific while the other was not, in order that the comparison may be fair and proper, it is always desirable to allow some margin. The rule of 5 or 10 per cent. which is laid down by the settlement authorities is certainly not a rule of law; but even though somewhat arbitrary, it is based upon experience and we think that it may be of considerable help to the civil Courts in deciding cases of this description. In the present case it appears from the kabuliyat that the measurement at the time of the settlement was made with some degree of care. The kabuliyat itself makes some allowance for inaccuracy in measurements. We think, therefore, that in these circumstances we should follow the 5 per cent. rule as laid down by the settlement authorities and make that deduction from the total area as recorded in the settlement records.
6. The result, therefore, is that the plaintiff will be entitled to additional rent for one kani of land which we find to be in excess of the original area according to this calculation; and the rent payable for the total area is assessed by us at the round figure of Rs. 82. The plaintiff will have a decree at that rate for the period in suit with proportionate costs and damages at the rate of 15 per cent. There will be no order for costs in this appeal. The plaintiff will be entitled to proportionate costs in both the Courts below.
7. I agree.