1. This is an appeal on behalf of the defendants against the decree of the District Judge of Jessore, modifying the decree of the Munsif, Second Court, of Narail in a suit for rent brought by the plaintiff who is the respondent in this appeal. The facts are these: In the year 1884, the plaintiff's predecessor granted a dar-mourasi lease in favour of the predecessor of the defendants. The lease was with regard to a certain area of land which the District Judge has found to have been 1183 bighas at the time when the lease was granted. It was for a consolidated rent of Rs. 176-8 annas I5 gandas per year. It was obtained on payment of a selami of Rs. 1,181-4. All the rights which a permanent tenure-holder is entitled to get under a Mourasi lease was granted to the lessee, that is, he was entitled to enjoy and possess the leasehold from generation to generation with all the powers of an owner on payment of the fixed rent. It has been found by the Courts below that during the period for which the suit for rent was brought, that is, from the last half of 1325 B.S. to 1328 B.S. nearly two thirds of the demised land had been dilu viated by the river Madhumati. The question involved in this case is whether by reason of diluvion the tenants-defendants are entitled to a proportionate abatement of rent for the period in the suit. The Munsif allowed the abatement. The District Judge on appeal has held that having regard to the terms of the patta the tenant had contracted himself out of his right to claim abatement of rent on any ground whatsoever. Upon that finding the District Judge passed a decree for the sum claimed at the rate stipulated in the patta.
2. It is contended on behalf of the appellants that they are entitled to a proportionate abatement of the rent on the ground of diluvion. It is argued that the right to obtain abatement in case of diluvion is based upon the general principle of law which should be enforced as a rule of justice, equity and good conscience; and unless there is any special contract by which, the tenant precluded himself from obtaining the abatement he is entitled to claim it. Reliance has been placed upon certain cases, notably the cases of Sheikh Enayetoollah v. Sheikh Elahee Buksh W.R. 1864 : Act X Rul. 42 and Salim-ullah Bahadur v. Kali Prosonno Parbat 33 Ind. Cas. 319 : 22 C.L.J. 569 in support of the contention on behalf of the tenant. The general proposition of law as enunciated is not contested by the respondent. But the contention on behalf of the respondent is that upon a true and proper construction of the agreement entered into in this case the tenant is not entitled to abatement on the ground of diluvion. We have, therefore, to see whether the contract is such that the tenant cannot rely upon the rule which has been considered as a rule of the nature of justice and equity under which he is entitled to abatement of rent on account of diluvion. The first thing to be noted in the kabuliyat is that it is a mourasi mokurrari lease. The rent is fixed; but that does not prevent the tenant from claiming an abatement on the ground that a part of the leasehold property is lost by diluvion. The express contract runs thus: 'You shall not be entitled to take a plea for remission of the jama fixed on the ground of failure of crops on account of inundation or drought, on account of dearth, abandonment, land lying fallow or being in a waterlogged condition, dispossession and on any other such ground. If you do that it shall not be entertained. I shall not be competent to demand anything in excess of the rent fixed on any ground.' There is also this further passage: 'If Government acquires any land under the dar-mourasi for its own use or for works for the public good you will get the compensation but shall not get any abatement of rent on that account.' There is another passage which it is necessary to mention: 'If you find it necessary to surrender the jama on account of inability to pay rent at the rate stipulated you shall surrender after paying in full all arrears of rent and on delivery of possession of the land and jama to me to my satisfaction. Otherwise you shall remain liable for the rent as stated above.' The contention on behalf of the appellant is that there is no special stipulation that even on account of diluvion the tenant will not be entitled to any abatement of rent: and, therefore, his right to claim abatement has hot been taken away by the contract. While the contention, on the other side, is that taking all the provisions that I have already cited, it is quite clear that the stipulation was that there should be no abatement of rent nor increase of rent on any ground what soever. If the tenant considers that he is being made to pay more rent than what he is capable of paying it was open to him to surrender the land and he cannot say that he is entitled to keep the land which has not been diluviated and is not bound to pay rent at the rate stipulated in the kabuliyat. In our judgment it seems to be beyond reasonable doubt that the stipulation of the parties was that there should be neither increase nor decrease of the rent on any ground whatsoever. If there is any accession to the land by alluvion the landlord would not be entitled to any increase of rent. If there is a decrease of land by diluvion the tenant will not be entitled to any abatement of rent. There is no question of justice and equity in this Case because it is within the power of the tenant to surrender the land at any time he chooses. In one of the cases cited On behalf of the appellant Salimullah Bahadur v. Kali Prosonno Parbat 33 Ind. Cas. 349 : 22 C.L.J. 569 the learned Judges decided the question with reference to the stipulation there made by which the landlord reserved the right to increase the rent if it was found on measurement that the land was in excess of the area let out. The learned Judges held that in the absence of an express stipulation the tenant would not be deprived of the right to abatement of rent on the ground of diluvion. It would be unreasonable to hold that the tenants placed themselves in a position of manifest disadvantage without any corresponding benefit. In this case upon a proper construction of the kabuliyat it seems to me that the tenant was placed in a better position than the landlord. The landlord would not be entitled to get any increase of rent whatever. The stipulation is in general terms and notwithstanding the fact that under the provisions of the Bengal Tenancy Act and under the Regulation (IX of 1825) he would be entitled to claim rent for the land accreted to the leasehold he has precluded himself from claiming anything in excess of the rent fixed. He cannot ask the tenant to give up the land on any ground whatsoever, while the tenant has the right to surrender it at any time he chooses. Under these conditions it seems to me that this appeal must be dismissed with costs.
3. The appellants' learned Vakil has stated before us that they are willing to surrender the land. The Advocate-General, on behalf of the respondent, is willing to accept the surrender. But we cannot give effect to the statements by the learned Counsel on both sides. It would be quite desirable if the tenants surrender the land by giving a proper notice to the landlord in which case the landlord will be bound to accept the surrender.