1. This is an appeal in a suit by the plaintiff landlord to recover arrears of rent for the years 1309 to 1311 on the basis of an annual jama amounting to Rs. 1,005 8 for 1,292 bighas, 6 1/4cottas of land.
2. The defence is that the quantity of land in the defendants' jote is far in excess of 1,292 bighas, 6 1/4 cottas, namely, that it amounts to 7,517 bighas, 4 cottas. The written statement further asserted that the patta and kabuliats had been exchanged between the parties and that the jotedars defendants were entitled to a considerable reduction of rent on account of diluvion so much so that the annual rental could not be reckoned at more than Rs. 300.
3. On the application of the defendants, a Commissioner was appointed, and his report has been accepted in the judgments of both the Courts below; in other words, he found that the defendants' jote had suffered very considerable diminution on account of diluvion. Both the lower Courts have given effect to the plea of diluvion and passed a decree in general accordance with the defence.
4. In second appeal, it has been urged, on be-, half of the plaintiff landlord, that in terms of the amalnama, dated the 25th Sravan 1269, the defendants are not entitled to claim any abatement whatsoever; secondly, that the Courts below have made out a new case for the defendants; thirdly, that the non-existence of one of the mouzas included in the defendants' jote, namely, Bazar Gopinathpur, long before the date of the amalnama having been proved and admitted, the defendants are not entitled to any further reduction of rent in respect of that mouna, and, lastly, that the plaintiff has been unjustly saddled with the costs of the local inquiry.
5. We have examined the amalnama in detail, and it is certainly impossible to resist the conclusion that as regards the period of 5 years then in contemplation between the parties, it was stipulated that the tenants should not be entitled to claim any deduction whatever and that the lessees should not be able to raise any objection to the abadharit (settled) jama. With the exception of this amalnama, there is no sort of written agreement in evidence between the parties. The tenants having asserted an interchange of patta and kabuliat, it was incumbent on them to produce their patta and to make out the plea of abatement on the ground of diluvion. The amalnama mentions that settlement is granted for five years only; but there is a stipulation that there will be measurement of the jote and that a fresh settlement will be entered into on the basis of the area so ascertained. The document also supports the statement made by the defendants that patta and kabuliat have been exchanged; and, if so, there must have been some proviso in the later agreements dealing with the question of diluvion by the river Teesta. But owing to the non-production of these papers, we are led to the conclusion that the defendants have not succeeded in showing that, in respect of the three years in suit, they are entitled to any relief on the ground of diluvion.
6. It is, consequently, unnecessary to discuss the second and third contentions raised in second appeal.
7. With regard to the item of costs, both the lower Courts are clearly in error in thinking that the local inquiry was made at the instance of the plaintiff. The application was made by the defendants, and, having regard to their plea, it could not have been made by any other party.
8. The appeal must, therefore, succeed and the suit for the rents of 1309 to 1311 must be decreed with costs in all the Courts including the costs of the local investigation. The claim for damages at Rs. 25 per cent. is not pressed, but, in lieu thereof, interest is allowed at 12 per cent. per annum on the arrears of rent.