1. This is an appeal on behalf of the plaintiffs in an action for abatement of rent of a tenure held by them under the first four defendants. The case for the plaintiffs was that their predecessor-in-interest purchased the lands of the tenancy at a sale held in execution of a decree for arrears of rent, that in the sale certificate which was granted, the property was described as comprising 16 plots of which the total area was 12 bighas, and 19fcottahs, that they were in possession of the lands of the tenancy for many years, but that recently as the result of a litigation between themselves and the fifth defendant they have been -deprived of possession of two parcels of which the area, though stated in the sale certificate as 1 bigha and 13 cottahs, was really 4 bighas. They, therefore, prayed for a reduction of rent on account of the loss of these 4 bighas of land. The defendants in their written statement did not dispute the allegation of the plaintiff that the total area was 12 bighas and 19 1/4- cottahs, but contended that the area, of the two parcels they had lost was not 4 bighas; there was no suggestion, however, that the true area was not 1 bigha, 13 cottahs as stated in the sale certificate. In the Court of first instance neither party asked that the land should be measured. The Munsif assumed that the total area as also the area of the parcels lost by the plaintiffs was as stated in the sale certificate and on this basis he dealt with the question raised in. the eighth issue, namely, were the plaintiffs dispossessed by the fifth defendant owing-to their laches and negligence? He came to the conclusion that the plaintiffs had done their best to prove the title of their land lord as against the fifth defendant but had failed. In this view he allowed a reduction of rent in the proportion of 1 bigha, 13 cottahs, to 12 bighas, 19 1/4 cottahs. The first four defendants then appealed to the District Judge. Before him it appears to have been contended that Section 52 of the Bengal Tenancy Act was the only provision of the law under which abatement could be claimed, and that under Clause (6) of Sub-section (1), of that section, it was essential for the plaintiffs to prove by measurement the area of the land which they had lost. In this view, the District Judge reversed the decision of the Court of first instance and remanded the case for retrial.
2. The plaintiffs have now appealed to this Court, and on their behalf it has been argued, first, that the order of remand could not have been made under Section 562, C.P.C., and, secondly, that the order is erroneous on the merits. In our opinion both the contentions are well-founded.
3. The decision of the Court of first instance was not based on any preliminary ground. The whole of the evidence had been taken and the conclusion of the Court related to the merits of the case. It is clear, therefore, that the District Judge had no jurisdiction to set aside the decree of the Court under Section 562, C.P.C. Apart, however, from this circumstance, it is clear that the decision of the District Judge is erroneous on the merits. Section 52 of the Bengal Tenancy Act is not exhaustive. Dintarini Dasi v. Broughton 3 C.W.N. 225; Matungini Dassi v. Ram Das Mullick 7 C.W.N. 93. No doubt Section 52 provides that, when a tenant proves by measurement that he has lost possession of a portion of the laid for which he has previously paid rent, he is entitled to a reduction of the rent. That, however, does not show that claim for abatement of rent may not be otherwise established. In the case b3fore us, in view of the result of the previous litigation between the plaintiffs on the one hand and the fifth defendant on the other, there is no room for controversy that the plaintiffs have been dispossessed of a portion of the land comprised in their tenancy by a person claiming under a title paramount. If so, it 4s obvious that they are entitled to a. reduction of the rent Brojo Nath Paul Chowdhury v. Hira Lal Paul 10 W.R. 120 : 1 B.L.R. A.C. 87; Gopanund Jha v. Lalla Gobind Pershad 12 W.R. 109; Imambandi Begum v. Kamleswari Pershad 21 C. 1005 : 21 I.A. 118. As there was no suggestion in the Court of first instance that the lands should be measured, the Munsif properly allowed a reduction in the proportion of the area lost to the total area. In fact, the plaintiff were entitled to proceed on the basis of the sale certificate, the entries in which must have been made upon the strength of the information contained in the plaint of the rent suit instituted by the landlords against their tenant.
4. The result, therefore, is that this appeal must be allowed, the order of the District Judge set aside and the decree of the Court of first instance restored with costs through-out.