1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Walmsley in a suit for arrears of rent.
2. The plaintiff seeks to recover arrears of rent for the years 1914 to 1918 The rent is claimed at Rs. 20 a year together with ceses at annas ten per year. The defendants claim reduction of rent on account of diminution of area. The trial Court decreed the suit in full. On appeal, the Subordinate Judge varied the decree and allowed the reduction claimed. On second appeal to this Court, Mr. Justice Walmsley has reversed the decree of the Subordinate Judge and restored that of the primary Court.
3. The question in controversy arises in this way. The plaintiffs allege that the tenancy comprised 1 kani, 12 gandas of land within the boundaries specified and was held at Rs. 20 a year. The defendants contend that according to an entry in the record-of-rights, which was finally published on the 21st January, 1918, the area is 1 kani, 2 gandas and 2 karas, and that if the rule of proportion be applied, the rent payable by them will be, note Rs. 20 but only Rs. 13-9-6 per year.
4. The origin of the tenancy is apparently unknown; but we have the fact that in 1899, the defendants were sued for arrears of rent due in respect of the years 1895 to 1897. The then plaintiffs claimed rent at the rate of Rs. 20 and alleged, as now, that the area of the tenancy was 1 kani, 12 gandas. The defendants did not urge that the area was less than 1 kani, 12 gandas or that the rent payable was less than Rs. 20 per year. On the other hand, they pleaded that the rent payable was Rs. 20 per year and that all the arrears had been duly satisfied. The plea of payment was found untenable and the suit was decreed on the 20th June, 1899. On appeal, that decree was affirmed by the District Judge on the 18th September, 1899. Since then, the defendants have paid rent at the rate of Rs. 20 a year. In the present litigation, however, they seek to take advantage of the entry in the record-of-rights to the effect that the area of the land comprised in the tenancy is 1 kani, 1 ganda and 3 karas. On this, they base their claim for reduction of rent under Section 52(1)(b), B.T. Act, which provides that every tenant shall be entitled to a reduction of rent in respect of any deficiency proved by measurement to exist in the area of his tenure or holding as compared with the area for which rent has been previously paid by him, unless it is proved that the deficiency is due to the loss of land which was added to the area of the tenure or holding by alluvion or otherwise, and that an addition has not been made to the rent in respect of the addition to the area.'
5. It is not asserted, however, that during the years in suit the defendants were not in occupation of a portion of the land which they held at the time of the previous litigation in 1899; nor is there the faintest suggestion of diminution of area by reason of diluvion or a like cause. We may take it, then, that the land in the occupation of the defendants during the years in suit is the identical land held by them in 1899. This is, prima facie, a fatal obstacle in the way of the defendants, for in order to bring their case within Clause (6) of Sub-section (1) of Section 52, they must establish a deficiency in the area of their holding as compared with the area for which rent had been previously paid by them.
6. We may here observe that before the Subordinate Judge it appears to have been assumed that there was nothing to show that the rent was a consolidated one for the lands within the boundaries given by the plaintiffs, irrespective of the area, and the Court thereupon proceeded to consider, what was the standard of measurement. The Subordinate Judge held that the standard of measurement was a nal of 8 cubits of 18 inches as deposed by the defendants. Mr. Justice Walmsley has held that this-finding was not based upon legal evidence,, because some of the defendants had asserted that they let out lands by a nal of 8 cubits of 18 inches in a different taluk. This assertion, in his opinion, was not legal evidence of the standard of measurement applicable to the property in suit. The correctness of this view has been assailed on the ground that under Clause (d) of Sub-section (2) of Section 52, the Court is directed to have regard to the length of the measure used or in local use at the time of the origin of the tenancy, as compared with that used or in local use as the time of the institution of the suit for the purpose of determining the area for which rent has been previously paid. From this standpoint, the evidence of the length of the measure in local use may support the conclusion of the Subordinate Judge. But we need not examine this point further, for, in our opinion, the decree made by Mr. Justice Walmsley must be affirmed on a different ground.
7. On the facts already stated, it is clear that there is no proof of diminution of area in the case before us. The defendants; have not proved that, at the time of the original settlement, the rent was fixed at a specified rate per unit of measurement or at different rates according to the quality of the land. They have not established that in fact and in substance-the agreement was that the tenants should pay at a specified rate or rates for all the land (of which they were put in possession) according to its true area. On the other hand, the circumstances amply justify the conclusion that the rent fixed was a consolidated rent. Consequently. the fact that the area of the tenancy was stated to be 1 kani, 12 gandas in 1899 and was found to be 1 kani, 1 ganda and 3 karas in 1918, does not, by itself, justify the conclusion that the defendants held at a fixed rate which has to be applied to area ascertained by measurement in order to determine the rent payable by them: Dhrupad v. Hari Nath (1918) 27 C.L.J. 563, Manindra Chandra v. Kaulat Shaik : AIR1924Cal374 .
8. The result is that the decree made by Mr. Justices Walmsley is affirmed and this appeal is dismissed with costs.