1. This appeal raises a somewhat novel point for our consideration and unfortunately there is no appearance on behalf of the respondents. The plaintiff sued the defendants for rent of a certain nim-howla the rent of which had been settled under Ch. X of the Bengal Tenancy Act.
2. The defence was that the land had been totally diluviated.
3. The trial Court found that a certain portion of the land had been diluviated and allowed the defendants abatement of rent to the extent of the land diluviated by the river. An appeal against the decree of the first Court was allowed in part and the decree of the first Court was modified to some extent. The lower Appellate Court allowed the defendants abatement of rent for the area which it was found had been diluviated.
4. The plaintiff has applied to this Court and he contends that under the provisions of Section 113 of the Bengal Tenancy Act the rent of this tenure is not liable to be reduced on account of any reduction in the area. This point was considered by the lower Court and he dealt with it as follows: 'This contention is unfounded ass. 113 of the Bengal Tenancy Act provides that the rent may be increased or decreased on the ground of alteration in the area of the tenancy.' As a matter of fact the Section does not say anything of the sort. What the Section does say is that 'no such rent shall be reduced within the periods aforesaid, save on the ground of alteration in the area of the holding.' It will be seen that Section deals with the rent both of the tenures and holding; and the learned Subordinate Judge has apparently not understood the distinction between a tenure and a holding. Section 113 only provides that 'no such rent shall be reduced within the periods aforesaid save on the ground of alteration in the area of the holding.' In the present case we are dealing not with a holding but with a tenure. The appellant therefore, quite correct in his contention that the defendants are not entitled to any abatement of rent on the ground of reduction of area.
5. The orders of the lower Courts must, therefore, be set aside and the plaintiff's suit decreed in full. The appellant will get his costs in the lower Courts. With regard to the costs of this appeal, as the respondents have not appeared the appellant does not press for them.
6. I agree.