1. The suit out of which this appeal arises was brought by the plaintiff to recover from the defendants rent for the years 1309 to 1314. The plaintiff sues as the proprietor of an estate called '6 annas Mahmudabad,' which he purchased in 1882 in execution of a decree against the then proprietor, Uma Nath Choudhury. The defendants hold under a kabuliat, dated 7th December 1874 and executed by their predecessor, Pati Mahomed, in favour of Uma Nath Chowdhury. The kabuliat was in respect of 500 bighas of land and the rent agreed was Rs. 265-10-0 or 8 1/2 annas a bigha. The deed provided for re-measurement in 1289 B.S. (1882-83) 'with the prevailing rasi of the pergana' and for enhancement or reduction of the rent at the game rate in accordance with such measurement. It appears that in 1885 the plaintiff found one Amirulla in possession of the western portion of the land leased. This portion has for convenience been styled part B, in contradistinction to part A which remained in the possession of the defendants. The plaintiff's case is that he was told that Pati Mahomed had sold part B to one Gagan Chandra Har by a kabala. The defendants denied this and maintained that they were in khas possession of a portion of part B, and had settled the rest of it with Amirulla. However that may be, on 24th February 1885, the plaintiff took a kabuliat from Amirulla of 101 bighas at a rent of Rs. 53 10-10 and realised rent from him up to 1312. In 1301, the plaintiff had the land measured. In 1900, the plaintiff sued the defendants for rent for the years 1303 to 1306. That suit was ultimately dismissed on 10th March 1904 on the ground that the plaintiff had split up his claim. On 27th February 1904, the plaintiff again sued the defendants for rent for the years 1307 to 1310. This suit was dismissed by this Court on 22nd March 1907 on the ground that plaintiff having dispossessed the defendants of a portion of the land demised, the rent was suspended until the defendants were again put in possession of the lands in part B.
2. On 6th August 1907, the plaintiff gave notice to Amirulla that his kabuliat was cancelled and that he should as from 1st Baisakh 1314 regard the defendants as the maliks and pay rent to them. On 7th July 1908, the plaintiff filed the present suit. The questions arising for determinations are (1) what is the rasi or standard of measurement prevailing in this pergana, (2) how much of the plaintiff's claim is within time, and (3) what portion of the decree should carry interest at the contract rate.
3. As to the standard of measurement, the plaintiff would have the court decide in favour of a rasi of 80 cubits. It is, however, conceded that prior to 1857, the rasi prevailing both in 6-annas Mahmudabad and 10 annas Mahmudabad was one of 110 cubits. This is apparent from the Robokari of 30th April 1860 (Exhibit 5). In 1860, 10-annas Mahmudabad was settled by Government as their khas mahal on measurement by a rasi of 80 cubits; and that rasi, which is the Government standard measurement, has since prevailed in 10-annas Mahmudabad. There is, however, no evidence on the record to show that any similar change took place in the neighbouring estate of 6-annas Mahumudabad. The wording of the kabuliat of 1874 would rather indicate that there had been no such change at that date. The plaintiff relies on some depositions of tenants of villages of 6-annas Mahmudabad who were examined in 1360 before Mr. Gomes (Exhibit 6 series). None of them appear to have been tenants on the lands now in question nor can we say how they came to make these statements. Standing alone, they are certainly not enough to prove the change of standard, which the plaintiff says took place gradually, presumably, subsequent to 1860. The judgment of 13th December 1892 [Exhibit 14 (4)] cannot be evidence against these defendants and besides this, it is clear that the Subordinate Judge has no power to deal with the question in a proceeding under Sections 90 and 91 of the Bengal Tenancy Act. The fact that the plaintiff has taken kabuliats from other tenants providing for re-measurement according to the rasi prevailing in the pergana, does not assist him. In those subsequent to 1892, he is careful to speak of the Government rasi of 80 cubits, no doubt, in consequence of the judgment [Exhibit 14 (4)] above referred to. On the whole, we are of opinion that the standard of measurement must be taken to be a rasi of 110 cubits of 18 inches. It may be noted that a similar decision has been given against the plaintiffs in suits against other tenants (Exhibit L series).
4. With regard to limitation, it was suggested that the operation of the Limitation Act was suspended during the progress of the former rent suit, but no authority was cited for such a proposition, which is obviously unsound. The principal contention of the plaintiff in this connection was that inasmuch as he had handed over possession of land B. to the defendants, he ought to be allowed a decree for three years' rent for so much of the land as was in the defendants' possession all along, viz. L. and A. But this he cannot have. He only gave up possession from 1st Baisakh 1314 and until that date the liability of the defendants to pay this entire rent was suspended, and as remarked by the late Chief Justice in the former suit, the plaintiff could not recover any part of his rent until he had restored the land B. to the defendants. To hold otherwise would be to render absolutely nugatory the rule as to suspension of rent as a punishment for the dispossession by the landlord of the tenant from a portion of the land demised. We think, therefore, that the Subordinate Judge was right in giving the plaintiff a decree for the rent of 1314 only.
5. As to the interest, we are unable to agree with the Subordinate Judge that the contract rate is to be confined to the rent for the area originally specified. The words of the kabuliat do not justify that restricted view. The plaintiff is, we think, entitled to interest at the contract rate on the whole sum decreed as rent. The rate, no doubt, is very high, 75 per cent. per annum, but the tenants have the remedy in their own hands. They have only to pay their rent regularly and no interest will be chargeable.
6. Except for this slight modification, the appeal fails, and we accordingly order that the appellant do pay the respondents' costs.