JUDGMENT
Sharfuddin, J.
1. The plaintiffs who are the appellants gave a mokurrari to the defendant of about 201 bighas of land. One of the plots is a plot of 94 bighas odd and this plot of 94 bighas is situated to the north of the river Goghri.
2. The defendant withheld payment of rent, on the ground that through the connivance of the lessors he was dispossessed from that portion of the mokurrari. The Subordinate Judge dismissed the suit; hence the present appeal.
3. On behalf of the appellants it has been conceded that the law is that when the lessor is directly or indirectly concerned in the dispossession of a tenure-holder from a mokurrari, the tenure-holder is entitled to withhold payment of the entire rent to the superior landlord, but it was contended that the appellants’ case depends on a kabuliyat executed by the defendant, wherein it was stipulated that in case of dispossession from any portion the defendant would be entitled to claim a proportionate abatement of rent. There is no doubt that there is such a provision, but that provision does not say that the defendant will not be entitled to withhold payment of any rent. Besides, we have to consider that clause in relation to what precedes it. Reading the kabuliyat as a whole, it is clear to me that what was provided was dispossession of the lessee from the mokurrari in consequence of litigation or owing to the action of the river. The clause relied upon is to the following effect: ‘If under any circumstances this executant or his heirs and representatives be, in future, dispossessed of any portion of the said land, or if under a decision of the Court any portion of it be taken out of the possession of this executant or his heirs and representatives; then this executant and his heirs and representatives will he entitled to a decree in the rent at the rate mentioned above to the extent to which they will be dispossessed.”
4. If we were to accept the argument on behalf of the appellants it would amount to nullifying the whole mokurrari, because if a wide meaning is given to this part of the kabuliyat, the lessor himself would be able to continue dispossessing the lessee till the latter is absolutely dispossessed from all the mokurrari lands. The meaning seems to me to be this: That in case of dispossession through an action in Court, or if by any act of God the lessee is dispossessed, he will be entitled to claim a proportionate abatement of rent. According to this kabuliyat the lessee was entitled to the produce generation after generation. There is also a very clear provision of the right to claim abatement owing to the action of the river. This being the view I take, I dismiss the appeal with costs.
Roe, J.
5. I agree.
