JUDGMENT
D. Chatterjee, J.
1. The predecessors-in-interest of the plaintiff, and the pro forma defendants took a mourasi mokarari lease of about 2,200 bighas of land in two plots, one of 800 bighas and the other of 1,400 bighas in the Sunderbans from the predecessor-in-interest of the appellant and executed a kabuliat dated the 23rd. of April 1890. Under the terms of the kabuliat there was a measurement in 1303 B.S. made by a Civil Court Amin and the mokarari was fixed at the full stipulated rate of 121/2 annas per bigha on the quantity of land found. The plaintiffs, who by an amicable arrangement with the pro forma defendants hold the smaller plot, have brought the present suit for abatement of rent under Section 52(b) of the Bengal Tenancy Act in respect of the whole tenure, on the allegation that there had been a reduction of about 600 bighas in the area of the entire tenure by diluvion and joined the pro forma defendants as parties on the ground that they had refused to join as plaintiffs. The main objections to the suit pressed on behalf of the appellant are: (1) That the present suit for abatement is rot maintainable by the plaintiff’s alone; as they re admittedly part-owners of the tenure, and Section 188 of the bengal Tenancy Act is a bar to the suit; (2) that under the express terms of the kabuliat the plaintiffs are debarred from bringing a suit for abatement on the ground of diluvion.
2. The first objection is easily disposed of Section 188 of the Bengal Tenancy Act prevents a co-sharer landlord from bringing any suit authorised by the Act unless his other co-sharers join him as plaintiffs. This section has no reference to joint tenants and cannot be applied by analogy to a co-sharer tenant who brings a suit authorised by the Act. This view is supported by an opinion expressed by Sir Francis Maclean, Chief Justice, and Banerjee, J., in the case of Bhoopendra Narain Dutt v. Roman Krishna Dutt 27 C. 417 : 4 C.W.N. 107. The decision of the Privy Council in the case of Jatindra Nath Choiwdhuri v. Prasanna Kumar Banerji 8 Ind. Cas. 842 (P.C.) : 13 C.L.J. 51 : 38 C. 270 : 9 M.L.T. 1 : 13 Bom. L.R. 1 : 15 C.W.N. 74 : 2 M.L.J. 92 : (1911) 2 M.W.N. 119 : 8 A.L.J. 1 has reference to a suit for enhancement by a co-sharer landlord and cannot be called in aid of the appellant’s plea.
3. Then as to the second point, the condition in the kabuliat is: “we shall not object to the payment of rent on the ground of drought, inundation, death, desertion, overflow of saltwater, diluviation by river, etc.” The learned Judge has got over this clause by holding that it refers to temporary impediment to the realization of rent and could not have been meant to apply to a permanent reducation of the area. The document, however, does not seem to make any distinction between temporary and permanent impediments. The judgment of the learned Judge has been supported by an ingenious argument advanced by the learned Vakil for the respondent. He argued first that the clause in question prevents the tenant from objecting to the payment of rent and cannot stand in the way of his bringing a suit for abatement, and, secondly, that the Sunderbans not being a permanently settled area, Section 179 of the Bengal Tenancy Act has no application and the covenant in the lease, if it bears the meaning contended for by the appellant, is inconsistent with the provisions of Section 52 and is, therefore, void under Section 23 of the Contract Act. As regards the first branch of this argument I do not think it is sound. The only objection that the tenant could make on account of diluvion would be one of reduction of runt and seeing that the settlement is a mourasl molcurari one, the most reasonable construction is that the tenant agreed not to claim reduction on the ground of diluvion. As regards the second branch of the argument it assumes that the Sunderbans is not a permanently settled, area. The learned Vakil for the appellant states that the appellant has got a permanent lease from the (Government, but the learned Vakil for the respondent does not ultimately admit this, although he at first said that the lease of the appellant was of a permanent character. The learned Judge says: The tenure being numerous in the Sunder-bans, cannot in view of Section 13 Regulation 111 of 1828, be held to be a permanent tenure.” I do not quite understand what the learned Judge means. The section provides that the Sunder bans should be considered to be the property of the State not included in the arrangements of the Perpetual Settlement and the Governor-General in Council shall be competent to make grants of leases as heretofore, etc. The section, therefore, does not ignore or invalidate any grants made by the Government before 1828 and authorises further grants, fn the case of Tamasha Bibi v. Ashutosh Dhur 4 C.W.N. 513 at p. 517 Mr. Justice lianerjec is reported to have said: I ought to add that though certain portions of Regulation 111. of 1828 go to show that the Sunderbans, up to that date, continued the property of the State and had not been permanently settled with any one, that was intended to be said generally with regard to the tract of country known as Sunderbans taken as a whole, and it could not have been intended to undo the effect of any lease granted by any duly constituted Revenue Authority.” The learned Judge is wrong, therefore, in holding that there could not be a permanent tenure in the Sunderbans. The case of Tamasha Bibi v. Ashutosk Dhur 4 C.W.N. 513 at p. 517, further supports the contention that a part of the Sunderbans would be a permanently settled area even if settled after 1793, the definition in Clause 12 of Section 3 of the Bengal Tenancy Act notwithstanding. The question, therefore, is whether the appellants had a permanent lease from the Government in respect of the estate a part of which they settled with the predecessor of the plaintiffs. I think the matter was never contested in the Court below and was at first admitted in the Court. The kabuliat mentions the property of the appellant as zemindari. lat abad gatihara touzi mehal No. 1374, and the very fact that I he plaintiffs and pro forma defendants have taken a permanent lease from a person who had made permanent improvements on the property is an indication that the appellant had permanent rights. In any case the patta contains the condition and it is for the party who impeaches its legality to make out his case. The respondent has not in this case shown that the property is not in a permanently settled area and he cannot ask us to make a remand for a further investigation on that point. I think the covenant is authorized by Section 179 of the Bengal Tenancy Act and the plaintiff cannot impeach its validity. In the view of the case I think the appeal should be allowed and the suit ought to be dismissed with costs in all Courts.
4. An application has been made by ore of the pro forma defendants who was made a co-plaintiff in the Court below to be allowed to withdraw from the suit. If he is allowed to do so, he must continue as a pro forma defendant. In the view that I take of the case, however, it is not necessary to pass any order on this application.
Mullick, J.
5. I agree.
