JUDGEMENT

Appeal (No. 51 of 1941), by special leave, from a decree of the High Court (March 29, 1938) which reversed a decree of the Additional District Judge, Faridpur (April 17, 1935), which had affirmed a decree of the Subordinate Judge, Faridpur (February 6, 1933)-

The following facts are taken from the judgment of the Judicial Committee The suit out of which this appeal arose was begun on April 15, 1931. It was a suit for three years rent of a permanent tenure which had been granted by the predecessors of the plaintiffs (respondents) and of certain pro forma defendants to one Srinath Sarkar, by a patta dated July 8, 1875, and for which a kabulyat had been executed by Srinath on May 22, 1877. He was engaged on zemindari management in the service of the respondents predecessors who granted him the patta. He died childless in 1890, and his widow, Patambari Dassee, succeeded him as tenureholder. She died on March 3, 1930, whereupon the appellant and his two brothers succeeded as her husbands reversioners. They were not originally made parties to the suit, but were added on their own application. The appellant had since acquired his brothers interests. His defence to the suit was that part of the lands comprised in the patta of 1875 were demised at a lump sum rent, and that, as the respondents or their predecessors some time in the eighties of last century dispossessed Srinath of a portion of those lands measuring some thirty-seven acres and worth about Rs.56 per annum, no part of that rent was payable by him ; his right being to a suspension of the entire rent until the lands in question were restored to him. The trial court and the lower appellate court sustained his defence and dismissed the claim for rent. The High Court (Ghose and Bartley JJ.), on second appeal, remanded the case for calculation of the proper abatement of rent to be allowed to the appellant.

The grantors of the tenure were certain persons called Rai— members of a family who owned the zemindari of a place in Jessore district called Narail, and who were referred to as the Narail Babus. Of those, certain members owning a one-sixth interest were not parties to the patta of 1875, but the other members demised thereby the remaining five-sixths share in a mouza called Orakandi, said to have an area of 1464 bighas after deduction of certain revenue-free lands and village pathways. For 822 bighas then in the occupation of raiyats the rent reserved was Rs.957-14-8. For a further 4 bighas 13 cottahs—a small cultivated area held in khas—the rent was to be Rs.4-11-0 at R.1 per bigha. For a further area of 635 bighas, which included patit or waste land, rent was fixed at Rs.317-15-9, but it was to remain rasad (in abeyance) payment being made at R.1 per bigha for such area as was found to be tilled in 1876 and at eight annas for the further areas found tilled in later years. The claim for rent in the present suit did not include any of that rasad rent, but was for Rs.770-1-4, the respondents proportion of the sum of Rs.962-9-8—that was, Rs.957-14-8 plus Rs.4-11-0—together with certain cesses. The sum of Rs.962-9-8 was called in the patta the talabi jama or demandable rent.

In 1906 or 1907, in the course of the survey and settlement then being carried out, the lands of khatians 1 to 17 inclusive were entered as in the occupation of raiyats paying rent to the Narail Babus, including the respondents. Of those the lands of eight khatians—3, 4, 6, 11, 13, 14, 15 and 17—were claimed by the appellant to be part of the 822 bighas which were settled at a lump sum rent. Those lands amounted in area to some 37 acres, and their rentals to about Rs.56. Much time was devoted at the trial to the respondents contention that those lands were not part of the 822 bighas, but lands belonging to Ratnadanga Bil and Patiladanga Bil—marshy areas which, according to the respondents, were outside the mouza of Orakandi referred to in the patta of 1875. A further contention of the respondents was