1. The suit is brought by the landlord against the tenure-holder of a maurashi mokarari registered lease contained in a patta and in a counter-part kabuliat. The claim is for arrears of rent from 1327 to 1320 B.S. at the annual rent fixed in the kabuliat, viz., Re. 176-8-15. The defence was that the tenant was entitled to a diminution in the amount of rent on account of diluvion and claimed the benefit of Section 52(B), Ben Ten. Act. The plaintiff, on the other hand, relied upon Section 179 of the Act which runs as follows:
Nothing in this Act shall be deemed to prevent a proprietor or a holder of a permanent tenure in a permanently settled area from granting a mourashi lease on any terms agreed on between him and his tenant.
2. He urges that under the terms of the contract of the tenancy the tenant agreed to pay as rent for the lands demised a sum of Rs. 176-8-15 per year in any event. Now, the tenant is entitled to the benefit of Section 52 unless he has contracted to the contrary. In my opinion unless the terms of the contract in question are so clear that it is manifest that the parties intended to exclude the operation of Section 52 the tenant ought not to be excluded from the statutory right that is given him under that section. In each case the question turns upon the true construction of the terms of the contract of tenancy. In the present case a selami of Rs. 300 was paid by the tenant and in consideration of the selami and the rent, it is stated that:
the landlords have settled with us the land described within the boundaries given in Seh. Ka below in kayemi dar mourashi right fixing the yearly jama at Rs. 176-8-15 and we of our free will do execute this kabuliat on the following conditions:
(1) For the aforesaid lands in Seh. Ka we shall pay Bs. 176-8-15 as rent. The amount of rent shall not be more or less at any time on any aooount.
(4) If at the time of the measurement any land in excess of those in Schedule Ka be found to be in our possession then we shall give up the said land to you without any objection.
(5) If any portion of the lands of this jama be acquired by Government, or District Board or Union Committee or by any Company then you and we shall get compensation according to law For this We shall not be able to get any abatement of the rent fixed.
3. It is upon a consideration of those provision's in the contract that the issue of this appeal depends. For the tenant it is urged that special stress is laid in the contract upon the quantum of the land demised and the area for which the fixed rent is payable. Dr. Pal has urged us to read the first clause as though the fixed rent was in respect of the whole of the area mentioned in Schedule Ka; but if any portion of the area ceased to be rent paying there should be a proportionate abatement I am unable to accede to that contention. To my mind the language in which Clause (1) is couched is too strong for the tenants, and I can see no escape from the conclusion that the parties contracted that in respect of this tenure there should be paid a fixed rent of Rs. 176-8-15 and that the amount of rent fixed should not be altered at any time or on any account. It may be that the contract so construed may work (as circumstances may arise) in favour either of the landlord or of the tenant. In the present case the tenant has proved to the-satisfaction of the Court of appeal below that a large proportion of the lands mentioned in Schedule Ka have become diluviated and it is pointed out that in the circumstances disaster may befall the tenant if he is called upon to fulfil the terms of Clause (1). Sitting in this place however, we have to administer the law as we find it, and construe a contract such as this according to the plain meaning of the terms into which the parties have entered. In my opinion, it is clear upon a true construction of this contract that the defence based upon Section 52 was not open to the tenant in the suit brought for rent by the plaintiff.
4. The result is that the decree of the Court of appeal below must be set aside, and a decree passed in favour of the plaintiff for arrears of rent for four years i.e., from 1327 to 1330 B. S., at the contract rate of Rs. 176-8-15 with costs in all Courts.
5. I agree.