Aripuddin Mondal vs Taser Mondal

Lahiri, J.—This appeal by the Plaintiff arises out of a suit for khas possession on declaration of title in respect of cadastral survey plot No. 322 of kliatiydn No. 94 of mauza Ramchandrapur in the district of Murshidabad. It is admitted that the lands recorded in cadastral survey plot No. 322 together with the lands recorded in cadastral survey plots Nos. 318, 720 and 89 and some other lands formed the subject-matter of a tenancy held by the predecessor-in-interest of Defendants Nos. 2 and 4 under the Midnapore Zemindary Company, Limited. The lands of the tenancy being on the bank of a river are subject to alluvion and diluvion. In the year 1937, corresponding to 1344 B.S., the Midnapore Zemindary Company, Limited, instituted Rent Suit No. 1498 of 1937 for recovery of arrears of rent at the rate of Rs. 17-5 which was the rent of the entire tenancy against Defendants Nos. 3 and 4. At that time only the lands of cadastral survey plots Nos. 318, 720 and 89 were in existence but the lands of Cadastral survey plot No. 332 and other lands were still under water. The tenants claimed abatement of rent which was allowed by the court and the rent was reduced from Rs. 17-5 to Rs. 4-11 by a judgment, dated December 20, 1937. The land of cadastral survey plot No. 322 alluviated in Ashwin, 1349 B.S., and the superior landlords were in khas possession through bargdddrs in 1350 and 1351 B.S. The Plaintiff took settlement from the landlord at a rent of Rs. 2-7 in Pons, 1351 B.S., but was dispossessed by the Defendants Nos. 1 and 2 on the strength of a purchase from Defendants Nos. 3 and 4. All these facts are admitted before us and they have been concurrently found by both the courts below.

The trial court decreed the suit upon the view that the title of Defendants Nos. 3 and 4 to the disputed land had been extinguished u/s 86A of the Bengal Tenancy Act as it stood in 1937 on account of the fact that the said Defendants had obtained abatement of rent in respect of it and it further found that the title of the said Defendants had also been extinguished by dispossession by the landlord for more than two years under Schedule III, Article III, of the Bengal Tenancy Act. The lower appellate court has reversed the decision of the trial court on both the points and has held that Section 86A, as it stands after the amendment of 1938, applies to the case and that the possession of the land by the landlord after its re-appearance amounted at best to a discontinuance of the possession of Defendants Nos. 3 and 4 and not to their dispossession within the meaning of Schedule. III, Article III, of the Bengal Tenancy Act. Upon this view, the court of appeal below has dismissed the suit. The Plaintiff has brought this second appeal against that decision.

The first question that arises for consideration in this appeal is whether by the acceptance of abatement of rent in the year 1937 under the decree in Rent Suit No. 1498 of that year the tenancy right of Defendant''s Nos. 3 and 4 can be said to have been extinguished. In order to decide this question we have to notice the changes in law introduced by the successive amendments of the Bengal Tenancy Act in the years 1928 and 1938. Prior to the introduction of Section 86A by the Bengal Tenancy Amendment Act of 1928, the law was that acceptance of remission or abatement of rent in respect of lands washed away by the river simpliciter does not constitute abandonment of the land without some other evidence of the intention to abandon and it does not take away the tenant''s right to the land when it is reformed in situ. This was held by the Privy Council in the case of (1913) L.R. 41 I.A. 32 (Privy Council) . u/s 86A which was introduced by the Bengal Tenancy Amendment Act of 1928, if the whole or any part of the lands of a holding is lost by diluvion and if the tenant obtains an exemption or abatement of rent on that account, the tenant shall be deemed to have Surrendered his rights in such lands and his tenancy and rights therein shall be extinguished unless there is a contract to the contrary made by a registered instrument. This was the law from February 21, 1929, when the Bengal Tenancy Amendment Act (Ben. IV of 1928) came into operation, up to August 18, 1938, when the Bengal Tenancy Amendment Act (Ben. VI of 1938) came into force. The result of the introduction of Section 86A by Bengal Act IV of 1928 was to take away the effect of the Privy Council decision in Arun Chandra''s case and to lay down that by merely accepting exemption or abatement of rent on account of diluvion the tenant could be said to have surrendered his interest in the tenancy and his tenancy would be extinguished in whole or in part in the absence of a contract to the contrary made by registered instrument. By the amendment of 1938, by Bengal Act VI of 1938, Section 86A was remodeled and it was provided that if the land of the tenancy was wholly or partially lost by diluvion the tenant would be entitled to total exemption or proportionate abatement but the interest of the tenant shall subsist in such, lands or portions thereof during the period of loss by diluvion not exceeding twenty years and the tenant shall have right to immediate possession on the re-appearance of such land or portion thereof within twenty years of the loss by diluvion.

It is, therefore, quite clear that whereas u/s 86A of 1928 the acceptance of abatement of rent on account of diluvion operated as an automatic extinction of the rights of the tenant, u/s 86A of 1938, it has no such effect and on the contrary, the interest of the tenant subsists for twenty years in spite of the acceptance of remission or abatement of rent on account of diluvion.

In the present case the concurrent finding of both the courts below is that the disputed land was washed away in 1334 B.S. (1927) and reformed in situ in Aswin, 1349 B.S. (1942) and the tenant accepted remission of rent on December 20, 1937, by the judgment in Rent Suit No. 1498 of that year. If Section 86A of 1928 applies, the interest of Defendants Nos. 3 and 4 must be held to have been extinguished, because it is nobody''s case that there was any contract to the contrary by a registered instrument, but, if Section 86A of 1938 applies their interest subsists because the period of submergence is less than twenty years. The trial court applied Section 86A of 1928 but the lower appellate court applied Section 86A of 1938.

Mr. Sen Gupta, appearing in support of the appeal, has contended that the court of appeal below should have applied Section 86A of 1928 and should have held that the interest of Defendants Nos. 3 and 4 had been extinguished. Sub-section (1) of Section 86A of 1928 consists of two clauses. The first clause applies to a case where the lands of a tenancy are wholly lost by diluvion and the second clause to a case where the lands of a tenancy are partially lost. Mr. Sen Gupta relies upon the second clause on the footing that the present case is one of partial diluvion and proportionate abatement. Mr. Roy, appearing for the Respondent, has contended that assuming that Section 86A of 1928 applies to the case, it does not come under the second clause because the present case is not a case of partial diluvion of the lands of the tenancy but a case of total diluvion followed by partial diluvion which is not contemplated by the second clause of Section 86A(2) of 1928. "We cannot, however, accept this contention because although the Plaintiff''s case in the plaint was that all the lands of the tenancy had been washed away by 1330 B.S. and a portion of it had re-appeared at the time of the institution of Rent Suit No. 1498 of 1937, the courts below did not accept this view and merely found that at the time when the aforesaid rent suit was instituted only the lands of cadastral survey plots Nos. 318, 720 and 89 were in existence, the remaining lands of the tenancy being under- water. There is no finding that all the lands of the tenancy had been washed away at any time. Moreover, the case of total diluvion followed by partial diluvion would, in our opinion, come within the second clause of Section 86A of 1928 because it is nevertheless a case of partial diluvion and the tenant is entitled to proportionate abatement of rent on the ground that a portion of his land is still under water.

The second objection of Mr. Roy to the applicability of Section 86A(1)(ii) of 1928 is to the effect that in this case the tenant did not obtain proportionate abatement on the ground of diluvion but on the ground of deficiency in area u/s 52 of the Bengal Tenancy Act. This point is also without substance. The judgment of Rent Suit No. 1498 of 1937 (Ex. 7) shows that the first point for consideration as formulated by the court was as follows: "Is the story of diluvion of the holding in suit, as "stated in the written statement of defence, true? If so, can "the rent be reduced?" In discussing this point in the judgment, the court which was trying three suits together observed that the Defendants in some of the suits urged that their holdings had been completely washed away while others urged that their holdings had been partially diluviated and the Defendants were entitled to claim reduction of rent both u/s 52 and Section 86A of the Bengal Tenancy Act. So far as Suit No. 1498 is concerned, the finding was as follows: About eight bighas seven cottas of "land are in existence. Rent reduced to Rs. 4-11 a year." Upon these findings we have no doubt in our mind that Defendants Nos. 3 and 4 obtained abatement of rent on the ground of diluvion.

These two objections to the applicability of Section 86A of 1938 cannot, therefore, be upheld. We have now to examine if there is any other valid objection to the application of Section 86A of 1928. The court of appeal below has held that the law which prevailed on the date of re-appearance of the land would govern the rights of the parties, because the question of title arises only when the land has re-appeared. As in the present case the land reappeared in 1952 at a time when Section 86A of 1938 came into operation, the rights of the parties should be governed by that section. Mr. Roy, appearing for the Respondents, has also sought to support that conclusion. We have no doubt that this conclusion is wrong. A plain reading of the two sections will show that both Section 86A of 1928 and Section 86A of 1938 deal with the title of the tenant to land which is under water. In the present case, the tenants obtained proportionate abatement of rent during the continuance of Section 86A of 1928, and, therefore, the consequences envisaged by that section will attach to the incidents of the tenancy and those consequences are that the tenants shall be deemed to have surrendered their interest in the tenancy and their rights therein shall be extinguished. The result is that Defendants Nos. 3 and 4 lost their rights to the disputed land in December, 1937, when they obtained abatement of rent on the ground of partial diluvion. If the rights are extinguished as a result of the operation of Section 86A of 1928 those rights cannot revive after the coming into operation of Section 86A of 1938. Sub-section (2) of Section 86A of 1938 provides that in spite of the acceptance of remission or abatement "of rent on the ground of diluvion the interest of the tenant to the submerged lands shall "subsist" for a period of twenty years. Subsistence, in our opinion, presupposes existence. If the rights are in existence they can be said to subsist or to continue to exist, but if they are not in existence they cannot be said to subsist. '' We, accordingly, hold that once the rights are extinguished u/s 86A of 1928, they cannot be brought back to life by operation of Section 86A of 1938. This was the view taken by Sen, J., in the case of Jillar Rahman v. Dharma Chand (1948) 53 C.W.N. 501 and we respectfully agree with that view. Moreover, u/s 8 of the Bengal General Clauses Act (I of 1899) the repeal of an enactment does not revive anything not in force or existing at the time when the repeal takes effect unless a different intention appears. When Section 88A of 1938 came into operation, that is, on August 18, 1938, the rights of Defendants Nos. 3 and 4 were not existing and, therefore, the repeal of the old Section 86A of 1928 could not have the effect of reviving their rights. The expression "Notwithstanding any "thing contained in this Act or any other law or any contract to "the contrary" occurring in Section 86A(5) of 1938 has the effect of superseding the provisions of Section 86A of 1928 and cannot be said to have the effect of overriding the provisions of Section 8 of the General Clauses Act.

Mr. Roy has relied upon the decision in the case of Gopal Vakta v. Gopal Munshi (1941) 45 C.W.N. 679 where Henderson J., held that Section 86A of 1928 laid down a rule of evidence only but nevertheless held that it was not retrospective in operation. It is difficult to appreciate how this decision helps the Respondents. In that case the diluvion and abatement of rent took place before the introduction of Section 86A of 1928 and Henderson, J., held that Section 86A of 1928 was not applicable whereas in the case before us the diluvion and abatement of rent took place during the operation of Section 86A of 1928. We, however, respectfully differ from the view that Section 86A of 1928 merely lays down a rule of evidence. The relevant, portion of that section runs as follows:

The tenant shall be deemed to have surrendered his rights in such lands or portion thereof and his tenancy and rights therein shall be extinguished.

The utmost that can be said is that the first part lays down a rule of irrebuttable presumption but there is hardly any doubt that the second part affects substantive rights. We cannot agree with the view that the second part merely emphasises the effect of the surrender. In our opinion, the acceptance of abatement of rent automatically takes away the tenant''s rights u/s 86A of 1928.

The first point urged by the Appellant accordingly succeeds.

The second point raised by the Appellant is that the court of appeal below was in error in holding that the possession of the disputed land by the landlord for more than two years amounted merely to a discontinuance of the possession of the tenants and not to their dispossession within the meaning of Schedule III, Article III, of the Bengal Tenancy Act. Mr. Boy has urged that this point is the subject-matter of Full Bench Reference Case No. 4 of 1950 and if we are to decide this point the decision of the appeal must await the decision of the Full Bench. Having regard to the fact that the first point raised by the Appellant succeeds, it is not necessary for us to go into the second point.

For the reasons given above, this appeal is allowed. The decree of the lower appellate court is set aside and that of the trial court restored. There will be no order as to costs.

Mitter, J.

I agree.