N.R. Chatterjea, J.
1. These appeals arise out of suits for rent of two jotes, one comprising 24 bighas and odd and the other 23 bighas and odd.
2. The defence was that all the lands of the jotes had diluviated and that the defendants were not, therefore, liable for rent. There was a local investigation by a Commissioner and it was found that the jotes suffered total extinction on account of diluvion.'
3. The lands were held under two kabuliyats for a term of five years, and there was a stipulation that on the expiry of the term a fresh settlement would be taken on enhanced rents. No fresh settlement was taken and the defendants paid rent for two years (after the expiry of the lease) during which the lands were partly diluviated. They did not pay rent for the years in suit, as the lands were wholly washed away.
4. The Court of first instance dismissed the suit, but his decree was reversed, and the suit was decreed, by the Court of Appeal below. The defendants have appealed to this Court.
5. The learned District Judge, differing from the Munsif, held that according to the agreement contained in the kabuliyats the lessees were not entitled to claim any reduction of the rent.
6. The jotes consisted of 24 bighas and 23 bighas of land respectively but they were stated to be tenures in the written statement and in the judgment of the Court of Appeal below, and the arguments in this Court proceeded upon that footing.
7. The learned District Judge observes, 'Now one of these stipulations is to the effect that on no account should the lessees be entitled to claim any reduction of the rent settled under the kabuliyats.' The kabuliyat, however, does not contain the words 'on no account.' All that it says is that 'the cultivation or non-cultivation, profit or loss in respect of the jote shall be ours. We shall not be competent to make any objection to the rent settled'. We think that the lessees agreed not to make any objection to pay rent, only on the grounds stated before, viz., non-cultivation, &c;, or similar grounds which presuppose the existence of the lands, and not where the lands are entirely washed away, Had it been intended that the lessees would be bound to pay rent even if the lands were diluviated, it would have been so stated in the kabuliyats. We are of opinion that the lessees were not precluded by the terms of the kabuliyats from pleading non-liability to pay rent if all the lands of the jotes were washed away. That being so, we think the defendants are exempted from the payment of rent for the years in suit.
8. It is contended on behalf of the respondent that as the defendants were holding over, they were liable to pay rent so long as they did not surrender the jotes or avoid the tenancy. But rent is paid by a tenant for the use of land, and if for no fault of his own, the lands are washed away, he cannot, on general principles, be held liable to pay rent. Section 52 of the Bengal Tenancy Act 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. In the present case all the lands of the tenure had been washed away and we do not see why the defendants are not entitled to claim exemption from payment of rent in a suit for recovery of rent. In the case of Afsarudin v. Musammat Shorashibala Debt Marsh. 558 : 2 Hay 664 Sir Barnes Peacock, C.J., observed:
It was contended that the respondent would not be entitled to any diminution of rent if the land had been washed away. But we think he is so entitled, unless there was an express stipulation that he should pay whether the land was washed away or not. If a man stipulates to pay rent, it is clear that he engages to pay it as compensation for the use of the land rented and independently of Section 18, Act X of 1859, we are of opinion that according to the rules of law if a taluqdar agrees to pay a certain amount of rent, the tenant of it is exempt from the payment of the whole rent if the whole of the land be washed away or of a portion of the rent, if a portion only be washed away. According to English Law a tenant is entitled to abatement in proportion to the quantity of land washed away, and he is entitled to that abatement in a suit brought by the landlord for arrears of rent.
9. Again in Sheik Enayutoollah v. Sheik Elaheebuksh W.R. (1864) Act X Rulings, 42 Sir Barnes Peacock, C.J., held that a tenant, whether with or without a right of occupancy, is entitled to abatement of rent for land washed away, unless precluded by the terms of the kabuliyat from claiming that abatement and referring to the rule laid down in Bacon's Abridgment, 7th Edition, Vol. VII, page 63, that if the use of the thing be entirely lost or taken away from the tenant the rent ought to be abated or apportioned because the title to the rent is founded upon this presumption that the tenant enjoys the thing during the contract, observed that the rule is founded on the principles of natural justice and equity that if a landlord let his land at a certain rent to be paid during the period of occupation and the land is, by the act of God, put in such a state that a tenant cannot enjoy, the tenant is entitled to an abatement.
10. We are accordingly of opinion that the defendants are not liable for the rents claimed. The decrees of the Court of Appeal below are reversed and those of the Court of first instance restored with costs here and in the Court below.
11. I agree and merely add that a similar principle is enunciated in Clause (e) of Section 108 of the Transfer of Property Act.