Dhanukhdhari Singh and Another vs Mt. Bibi Amma and Others

James, J.—These appeals arise out of a suit for recovery of arrears of rent. The Record of Rights contained an entry to the effect that the existing rents were payable only so long as the existing facilities for irrigation were maintained by the landlord; and the defendant pleaded that the landlord had totally neglected the irrigation work of the village with the result that his land had become completely unproductive. The learned Subordinate Judge accepted to a certain extent the evidence of the defendant, finding that the landlord had been neglecting the work of irrigation, but he found also that the bhit land for which cash rent had been payable from a very early period did not require irrigation. He therefore gave a decree for the amount of rent which had been payable for that bhit land; while he disallowed the claim for rent payable for other land.

For this latter description of the land he held that the defendant was entitled to withhold rent and so dismissed that part of the landlord''s claim. Both parties appeal from the decision of the learned Subordinate Judge.

The learned advocate for the appellant argues that the learned Subordinate Judge had not sufficient material before him to discriminate between the bhit land which form the ancient holding and the other land; and he contends that on his finding the learned Subordinate Judge ought to have dismissed the suit completely. On behalf of the landlord appellants the same arguments is taken, but the inference which would be drawn is that the learned Subordinate Judge ought not to have allowed any abatement of rent at all. The learned advocate also suggests that although the Record of Rights may say that the existing rents are payable only so long as the facilities for irrigation are maintained in proper order, the onus is upon the defendant to prove a specific contract to that effect between himself and his landlord.

He cites the decision in Partap Narain Singh and Others Vs. Nathan Singh and Others, as authority for his contention that in the absence of proof of the terms of the original tenancy, or of a custom by which the landlord must provide irrigation facilities the tenant is not entitled to suspension of rent in respect of a nakdi holding on the ground that the landlord has failed to .... maintain the water channels providing facilities for irrigation. In that case the Khatians showed that the landlord was responsible for maintaining the irrigation works; but it appears that this entry had reference only to bhaoli holdings and not to land held on cash rent.

In the present instance it is to be observed in the first place that the entry in the Record of Rights does not, on the face of it, say that the tenant is entitled to suspend payment of rent completely if the landlords should neglect their duty in the matter of maintaining irrigation works. It merely says that the tenant is only liable to pay the existing rent so long as the irrigation works are maintained. The landlords did not in this case attempt to make out that it was not their duty to maintain the irrigation works, but they attempted unsuccessfully to show that the work had been done; and it certainly cannot be suggested in view of the entry in the Record of Rights that the lower Courts were not justified in finding that the landlord was responsible for the maintenance of the irrigation works.

The entry describing liability to pay the existing rent as dependent on the maintenance of irrigation facilities is apparently apt to be misunderstood. It clearly does not mean that merely because the landlord may fail to maintain some particular work which does not affect the tenant whose rent is in question, the tenant would be entitled to claim abatement of rent; nor does it mean that the tenant will be entitled as of right to withhold payment of rent altogether merely because there has been some slight deterioration in facilities for irrigation. The claim for abatement of rent by way of defence, on the ground that irrigation works have been neglected is based on the allegation that the holding has deteriorated from neglect of gilandazi; and it is on the failure of the crop as a result of such deterioration that the claim for abatement must ultimately rest, whether the cause of the deterioration is that the land is under water, as in the case of Babu Sukhraj Rai Vs. Ganga Dayal Singh and Others, , or whether the cause is that owing to the landlord''s neglect of his duty it has been impossible to grow a crop.

The suggestion of the learned advocate for the appellant cannot be accepted that an entry in the Record of Rights describing the landlord''s responsibility for maintenance of the irrigation works cannot be used to impute liability to landlords unless there is independent proof of some special contract between the particular tenants and their landlords by which the landlords undertake to do their duty in their respect. In the present case the evidence of the defendant was to the effect that his land had been rendered totally unproductive owing to the failure of irrigation facilities. The learned Subordinate Judge says that he believes the defendant; but his belief is evidently qualified by some doubt since ho has found that the old bhit land did not require irrigation.

It is argued on behalf of the defendant that this finding is based on no evidence; but it is to be supposed that the learned Subordinate Judge discovered this from examination of some evidence on the record, probably from the village map. In refusing to give a decree for the rest of the land the learned Subordinate Judge did not err, if, as appears to be the case, he believed the evidence of the defendant to the effect that his crop had totally failed owing to the deterioration of the arrangements for irrigation.

As I have said, the claim for abatement of rent depends rather upon the consequence of the neglect of irrigation works than on the neglect independently of consequences.

The learned Subordinate Judge did accept the evidence of the defendant to the effect that his crop had failed owing to neglect of gilandazi by the landlord, so far as the bhit land of the second holding was concerned; though he did not accept it so far as the other bhit land was concerned. In that view of the action of the learned Subordinate Judge his decree must be supported. The decision of the lower Court is accordingly affirmed and both of these appeals are dismissed.