JUDGMENT
1. The suits out of which appeals Nos. 31, 33, 34, and 35 have arisen were ‘commenced by the tenants praying for abatement of rent on the-ground of decrease in area of the tenures covered by the suits on account of diluvion. The first Court held that the plaintiffs tenants had been able to prove that the area in each case, for which rent had been previously paid by them was larger than the area in their possession at the time of the commencement of the suits and that the deficiency in the area was due to diluvion. The learned Munsifi stated that there was no document forth-‘ coming from which the original area, that is, the area at the time of the in- -option of the tenancy could be found out and that there were no materials whatsoever, on the record by which the axtent of the original area of the tenures could be traced. He also stated that the plaintiffs had been able to produce before him the Record-of-Rights which showed that the recorded area in the possession of the plaintiffs at the time of such Record-of-Rights, namely, in 1907 was larger than the area found, by the commissioner who had been appointed to measure the land, in the possession of the plaintiffs. The question then arose as to whether the fact that the tenants .had been unable to show what the area was at the time of the inception of the tenancy would have the effect or barring relief to the tenants in the circumstances referred to above. The first Court observed as follows ;
Abatement on the ground of decrease in area due to diluvion is an ordinary incident of a tenure and my opinion is that the tenant is entitled to some relief on this score only if it can be shown that at some date prior to the institution of the suit the tenant paid rents for a larger area than in existence at present. This does not injure the landlord at all and it is he who profits by the tenant’s failure due to ignorance to establish the original area. The original area which was surely greater than the area taken as the .starting basis for calculation being not- taken ‘into account the proportion to which the tenant is entitled is increased to the advantage of the landlord. For the purposes of the suits, I am thus inclined 6o take the areas noted in the settlement records as the basis of my calculations. The records were prepared long ago and it can be presumed that the tenants are paying the recorded rentals for the recorded area.
2. The first Court then went into an elaborate calculation showing what the recorded area in the possession of the plaintiffs was as tenants in the Record-of-Rights and what the area found by the Commissioner in their possession was and gave them the appropriate relief on the basis of the difference of the two areas referred to above. The lower appellate Court to which appeals had been -carried by the defendant landlord in the above circumstances held that the tenants having failed to prove the area for which rent had been previously paid by them and the Munsiff having failed to find out whether the rent was a consolidated rent for the entire tenure disallowed the abatement granted by the Munsiff. Against this decision of the lower appellate Court the plaintiffs tenants have preferred appeals Nos. 31, 33, 34 and 35.
3. In appeal No. 32 which arises out of Suit No. 151 of 1925, the plaintiff was the landlord and the tenants were the defendants. In that suit which was a suit for rent, the lower appellate Court granted a decree to the landlord for the amount of the rent claimed and refused to grant any abatement whatsoever.
4. Against this decree, the defendants the tenants have appealed to this Court.
5. It appears, as indicated above, that there is no document forthcoming showing the inception of the tenancy but that the tenants have been able to show that the rent previously paid by them at any rate at the time of the Record-of-Rights was in respect of a larger area than the area found by the commissioner to be in their possession. Now, i cannot be disputed that rent is paid by a tenant for the use of the land settled with him or found to be in his possession and if, for no fault of the tenant, any portion of the land so settled is washed away he cannot on general principles of justice and equity be held liable to pay rent for the portion which has been washed away. This is elementary and has been referred to in a very early case decided in 1864 Sheikh Enayetoollh v. Sheik Elaheebulkh 1864 W.B. Act x Rule. 42. In that case, Sir Barnes Peacock, C.J. stated that it was settled doctrine that the tenant was entitled to abatement for the lands washed away in all eases and even in the case where there was a kabuliat if the terms of the kabuliat were not such as to preclude him from claiming that abatement, One modern statement of what was stated by Sir Barnes Peacock in 1864 is to be found in the case of Salimullah v. Kaliprosonno [1915] 22 C.L.J. The rule being one founded on principles of natural justice and equity, we have to examine for ourselves whether there is anything in the section itself which precludes us from giving relief to the tenants in circumstances such as have been disclosed on the record.
6. To start with, it has been laid down in several eases that Section 52, Bengal Tenancy Act, is not exhaustive. But be that as it may, the terms of the section itself show conclusively that in the present instance the tenants have brought their cases within the purview thereof. They have shown in each case that the area for which agent had been previously paid by them, that is for the period between the date of the settlement record and the date of the commencement of the suits was larger than the area found to be in their possession as would appear from the result of the local investigation held by a commissioner duly appointed in that behalf. In other words, they have shown that there is a deficiency in area proved by measurement in respect of the tenures or holdings in, their possession. That being so ex facie the tenants have brought their cases within the four corners of the sections. It is said, however, that the tenants have not shown what the area was at the time of the inception of the tenancy nor have they shown that the state of things was when the rent was assessed or adjusted. There is no doubt that the tenants have not shown what the area was at the inception of the tenancy nor have they shown what the state of things was when the rent was assessed or adjusted. But the real question is whether in the circumstances such as have arisen here the tenants are to be held disentitled to relief because of failure on their part to prove the matters referred to above. To hold that the tenants would be disentitled to relief would be to hold something not in accordance with the principles of natural justice and equity on which reliance was placed by Sir Barnes Peacock, C.J., in the case of Sheikh Enayetoollah v. Sheikh Elaheebuksh [1864] W.R. Act X Rul. 42 but to go merely by expressions used here and there in eases where the landlord was seeking to increase the rent payable by the tenant on the ground of increase in area. No case has been shown to us where in a suit by a tenant for abatement of rent on the ground of diluvion it has been laid down that the tenant is disentitled to relief because he has not been able, to, prove what the rent was at the time of, the inception of the tenancy, or what the, area was at the time when the rent was assessed or adjusted. In the absence of any such case, where the facts are that certain lands are proved to have been washed away and yet the claim for abatement is resisted by the landlord it must lie on the landlord to show that there are circumstances which do not entitle the tenant to claim relief. It is, in the first place, for the tenant to show that there is a deficiency in area. The onus of proof is then shifted on to the landlord to show that either the tenant has no right to abatement by some express stipulation contained in any document governing the tenancy or that there are circumstances which would disentitle the tenant to obtain relief. The landlord having failed to show any such circumstance and, the onus of proof having been discharged by the tenants, it follows, in our opinion, that the tenants in these cases are entitled to the relief claimed. What the actual measure of such relief would be has been found by the learned Munsif and we have not enough materials on the record furnished by the landlord to show that the calculation made by the Munsif in measuring the amount of relief to be granted to the tenants was in any way wrong. That being so, we allow appeals Nos. 31, 33, 34 and 35.
7. Appeal No. 32 must also be allowed. It is clear from what has been indicated ;above that in the suit out of which that appeal has arisen, the lower appellate Court has granted a decree for rent for the full amount claimed whereas the decree should have been for the amount of rent claimed by the plaintiff less the amount allowed on account of abatement of rent that is to say, the decree should have been for the amount allowed by the Munsif. The result, therefore, is that all these five appeals are allowed, the decrees of the lower appellate Court are set aside and those of the Court of first instance are restored and affirmed with costs in this Court as well as. in the Court of appeal below.
