Judgement

Consolidated Appeals (No. ii of 1940) from two decrees of the High Court (July 27 and 29, 1938) which reversed two decrees of the Subordinate Judge of Nadia (September 17, 1935).

The following facts are taken from the judgment of the Judicial Committee. This consolidated appeal arose out of two suits instituted by the appellants, claiming arrears of rent from the respondents for two successive periods of three years in respect of land belonging to Touzi No. 3653 of the Murshidabad Collectorate. The appellants were the proprietors of Touzi No. 523 of the Murshidabad Collectorate, and the respondents held a patni taluk comprising some villages in that estate under a patni patta executed by the appellants predecessors in interest in favour of the respondents predecessors on November 5, 1866, at a rent fixed in perpetuity of Rs.5483-5-11 per year (The patta provided (inter alia) that " Profits and losses in consequence of drought or inundation, death, abandonment, waste, desertion, production or " non-production, destruction by insects, deposit of sand, payment or non-payment, possession or dispossession, alluvion and diluvion, etc., shall be yours, never on any account whatsoever shall you or your heirs or representatives be competent to claim any reduction of rent, however little, and we or our heirs and representatives shall not, on any account, be entitled to demand any additional rent over and above the fixed rent; if we or you do so, it will be rejected . . . ." ").

The estate bearing Touzi No. 3653 consists of alluvial land situated on the bank of the Ganges in an old bed of the river Mathabanga formed before 1914. It was treated as an alluvial accretion to Touzi No. 523, and as added land within the meaning of s. 6 of the Bengal Alluvion and Diluvion Act, 1847 (Act

IX. of 1847), and therefore liable to assessment, and under s. 1 of the Bengal Alluvial Land Settlement Act, 1858 (Act XXXI. of 1858), the Revenue Authorities decided to assess and settle it as a separate estate. Such assessment and settlement took place under s. 3 of Regulation 2 of 1819, and the rent of all under-tenants was fixed under the provisions of Chapter X. of the Bengal Tenancy Act (Act VIII. of 1885). The estate was temporarily settled as Touzi No. 3653 on July 18, 1921, with the then owner of Touzi No. 523 for a period of fifteen years from April 1, 1921, at a revenue of Rs.847. Following the settlement, records-of-rights in Touzi No. 3653 were published. In that relating to the tenancy the respondent company was shown as the tenure-holder at a rent of Rs.1028-2-0, which was the rent fixed in the settlement proceedings. The first suit under appeal sought recovery of the rent so fixed for the three years 1921- 1922 to 1924- 1925, and the second suit for the three years 1925- 1926 to 1928- 1929.

Law. Rep. 69 Ind. App. 51 ( 1941- 1942) Kumar C handra Singh v. Midnapore Zemindary

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The Subordinate Judge granted two decrees in favour of the appellants, but they were reversed by two decrees of the High Court of Judicature at Fort William in Bengal (Nasim Ali and Henderson JJ.), who held that the appellants were precluded by the contract from claiming any additional rent for the alluvial lands. The appellants now appealed.

1941. Oct. 20, 21, 22. J. M. Parikh for the appellants. There is no dispute about the amount of the rent, but as to liability. The first question, one of construction, is whether the respondents contention that the clause in the patni lease precluded the appellants from claiming the rent in question is right. The lease of 1866 is in respect of land in the permanently settled Touzi No. 523, and no other, and the newly formed land, Touzi No. 3653, for which rent is now claimed was not included either in the permanent settlement or in the lease of 1866. There are no suitable words in the lease to show that the clause in point has any application to the added land, which never existed in 1866, and only appeared in 1914. Inasmuch,