Fouzi Lal Kurmi and Another vs Sm. Dhana Kumari Devi and Others

Wort, J.—This is the defendants first party''s appeal arising out of two actions or rent for the 2 annas kist of 1334, whole of the years 1335 and 1336, and 14 annas kist of 1337 B. S. Excepting with regard to the last 2 annas kist of 1335, the Judge in the Court below has given a decree to the plaintiff for the whole of the rent claimed. There is no appeal with regard to the last 2 annas kist of 1335 and there, fore it is unnecessary to make any statement in that regard. As regards the 2: annas kist of 1334 it is contended on behalf; of the appellants that the action of the plaintiff was barred by limitation. The right to sue for this kist, it is admitted, continued in the predecessor of the plaintiff, i. e. defendant 2, up to 12th April 1931,

The plaintiff''s claim with respect to that kist arose under an assignment dated 11th May 1931. It is obvious therefore that one the date of the assignment the claim for that instalment of the rent was barred by limitation, and, in any ''event, the appeal must be allowed as regards that part of the claim. As regards the other years the position was this. Two suits relating to two holdings--one Gopalpur and the other Gadai--were brought. The area of the first was approximately 409 bighas at a rent of Rs. 409 (fixed) or Re. 1 per bigha, while the area of the second holding was 358 bighas at a rent of Rs. 358-4-0. The defendants resisted the suit on the footing that they were entitled to remission of rent by reason of diluvion of the greater part of the area of the holdings. The learned Judges in the Courts below have held as a fact that in 1335 the lands were completely under water.

I have already stated my reasons for the conclusion that the claim for the year 1334 was barred by limitation and therefore this question does not arise with regard to that year. As regards the year 1336, 100 bighas of the diluyiated lands had reappeared and re-formed in the holding Gopalpur on the Bihar side of the Ganges. So far as the other holding is concerned, 65 bighas had reappeared on the Bihar side of the Ganges. The same may be said to be the state of affairs in the year 1337. The defendants pleaded in para. 7 of their written statement that:

So long the lands remained under water or sandy, i.e. unfit for production of crops, there would be remission of rents for the period and further that when the defendants enjoyed the lands after re-formation, the defendants would pay rent and defendants'' title remaining intact.

It is obvious from what I have read from the written statement that the defendants based their case not upon the general law but upon a contract.

Mr. De in his argument attempted to make a point with regard to this, but the short answer to that contention is that the fact that the defendants made the contract to depend upon the agreement of the parties would not in any way detract from the rule of general law which would be applicable to the case; in other words, if it were found to be the general law which entitled the tenants to apportionment or abatement of rent with regard to lands that had, diluviated, the failure of the defendants to establish the contract to that effect would in no way prevent their getting the relief to which they would be entitled under the law.

As regards the general law, the defendants rely upon the Full Bench decision of this Court, being the case in Dukha Lal Choudhuri Vs. Mt. Manabati and Others, . Fazl Ali, J. delivering the judgment of the Court made this observation:

Now, whatever may be the state of the law in England, it has always been held in this country that a tenant, whether he be an occupancy raiyat or otherwise, is entitled to abatement of rent if the whole or part of the land held by him is diluviated.

In the course of the judgment reference was made to the case in Arun Chandra Singha v. Bhagaban Chandra A.I.R.1931. Cal. 537 where Sir George Rankin said:

The right of a tenant at the general law to claim an abatement of rent by reason of a portion of the land of his tenancy having been washed away by the action of a river cannot now be disputed. The loss by fluvial action of part of the lands of a tenancy is of very frequent occurrence in India. English rivers differ so much from the rivers of India in this respect [compare Srinath Roy v. Dinabandhu Sen A.I.R.1914. P.C. 48 that it is not a matter for surprise that there is scant authority in England as to the law to be applied in such conditions. There is however some old authority for the proposition that if land is permanently covered by the eruption of the sea, the tenant is entitled to an apportionment of rent [1 Rol. Ab. 236 Bac. Ab. Rent (M) (2) Vol. VII, p. 63] and it may be said that the case in Matthey v. Curling (1922) 2 A.C. 180 is not inconsistent with this doctrine, although it seems clear enough that abatement of rent is not permitted by the law of England, merely because a portion of the demised premises is destroyed by fire or damaged by an extraordinary flood or occupied by an alien enemy. In India, the rule, in cases of diluvion, has long been settled in favour of the tenant.

Now, so far as Bihar is concerned, there can be no difficulty with regard to the matter having regard to Sections 38 and 52, Bihar Tenancy Act, as pointed out by Fazl Ali, J. in the case of this Court to which I have referred, observing as he does that Section 52 is much wider in its terms than Section 38 and holding that the latter Section applies to the case of a tenure-holder. That being so, we have to consider in this case the argument of Mr. De first of all that the matter is governed by the Santal Parganas Regulations, that is to say the tenancy we are dealing with is governed by the Santal Parganas Regulations, and secondly that the general law which has been stated in the judgment to which I have referred does not apply to that part of the country. I do not think there can be any serious dispute that so far as the lands with regard to which an apportionment or abatement of rent is claimed are concerned, the matter must be governed by the law of the Santal Parganas. The question therefore arises whether the general law, as laid down in the case to which I have referred, applies to that part of the country.

Mr. De relies upon certain Regulations of the Santal Parganas, The first is Regulation 3 of 1872, Section 3(2) of which provides:

No other enactment, heretofore or hereafter passed, shall unless the Santal Parganas be expressly named therein, be deemed to apply to the said Parganas, except so far as regards the trial and determination of the civil suits, referred to in Section 2 of Act 37 of 1855 in which the matter in dispute exceeds the value of one thousand rupees.

It might be mentioned in this connection that this suit does involve a sum in excess of Rs. 1000 referred to in the Regulation. Section 11 of the Regulation of 1872 provides:

No suit shall lie in any Civil Court, regarding any matter decided by any Settlement Court under these rules; but the decisions and orders of the Settlement Courts made under these rules, regarding the interests and rights abovementioned, shall have the force of a decree of Court.

I refer to this clause of the Regulation with regard to an argument in connection with the decision of the Settlement Officer referred to in the judgment of the learned Judge in the Court below. There appears in the first place to have been an order of the Settlement Officer fixing the rents. There is a further argument in this connection to the effect that the order fixing the rents was final and conclusive and that no abatement therefore could be allowed. But the learned Judge in the Court below deals with the order of the Settlement Officer, in connection with which I have referred to Section 11 of the Regulation in these words:

There can be no doubt that the defendants knew the fluctuating character of these lands at the time of the settlement. The; therefore requested the Deputy Commissioner of the Santal Parganas to make a note to the effect that the defendants were not liable to pay rent when the lands were under water and were unfit for cultivation. The Deputy Commissioner of the Santal Parganas discussed the matter from different points of view in connection with the preparation of a table of rates and roll;

and, later

as remarked by the learned Munsif, the learned Deputy Commissioner assigned cogent reasons for rejecting the prayer of the tenants.

I refer to the words used by the learned Judge as they are the only materials open to this Court as regards the facts of that order of the Deputy Commissioner. It appears that the application was made by tenants other than the present defendant, appellants. The Section speaks of the order of the Settlement Officer having the force of a decree. It is quite clear therefore that it can have no more force than a decree, and the present defendants not being a party to that application, and therefore not a party to the order of the Deputy Commissioner were not bound by it, even if it were to be held that by reason of Section 11 of the Regulation of 1872 the decision of the Settlement Officer was final and conclusive. Mr. De next relies upon Regulation 2 of 1886, Section 3 whereof provides that the rent fixed by the Settlement Officer shall not be changed except in the course of the settlement proceedings by an order of the Settlement Officer. u/s 6(b) of that Regulation:

Rent shall remain unchanged in the case of a Settlement made after this Regulation comes into force, for fifteen years from the time of the adjustment and record.

That is no more than the similar general provision in the Bihar Tenancy Act with a regard to the enhancement of rent after a period of fifteen years, and in my judgment quite clearly would not disentitle the tenant from the benefits of the general law with regard to abatement. The defendant appellants on the other hand rely on Clause (2) of Act 37 of 1855 to which I have already referred. That clause is to the effect that:

Provided that all civil suits in which the matter In dispute shall exceed the value of one thousand rupees shall be tried and determined according to the general law and Regulations in the same manner as if the Act had not been passed.

Reliance is also placed on the Bengal and Assam Civil Courts Act (12 of 1877) which provides for the application of the rule of justice, equity and good conscience in the absence of any rules regulating the matter in dispute. The words are:

In cases not provided for by Sub-section (1) of Section 37, the Court shall act according to justice, equity and good conscience.

Apart from the particular enactment to which I have just referred, there seems to be no valid reasons for holding that the Full Bench decision of this Court as to the general law with regard to this matter does not apply to the Santal Parganas. There would certainly be no logical reasons for coming to such a conclusion particularly having regard to the fact, as pointed out by Sir Manmatha Nath Mukherji during the course of his argument, that the Santal Parganas were formed in 1855 from two districts of the Prbvinoe of Bihar.

There are no logical reasons, to repeat myself, for coming to the conclusion that the general law in this regard does not apply to the Santal Parganas. What the general law is has been finally decided so far as this Court is concerned by the decision to which I have already referred. In my judgment therefore whether governed by the Bihar Tenancy Act or by the law as applicable to the Santal Parganas, the defendants in this case were entitled to abatement with regard to these lands diluviated for the years in suit.

One matter I should have dealt with and that is the argument of Mr. De that to the land, which was the subject-matter of the contract between the parties that is to say, with regard to which the defendants had agreed to pay fixed rent, and to the diara land, Section 180, Bihar Tenancy Act, applied. The short answer to the case is the other contention of Mr. De, namely that the law as regards the Santal Parganas applies in this case and not the Bihar Tenancy Act.

But there is a further answer to the argument: assuming that the Bihar Tenancy Act applies, if Section 180 is to be construed in the manner in which it was construed in Srinewas Prasad Singh v. Ram Raj Tewari A.I.R.1914. Cal. 673, the exception will apply during the first twelve years of the tenancy as provided by the Act. There is however reason to suppose in this case that the tenancy was in existence for many more years than twelve as referred to in Section 180. For those reasons it seems to me that the learned Judge in the Court below was in error in coming to the conclusion that the onus was on the defendants to show that there was some contract between the landlords and the tenants entitling the land, lords to this right which they would have under the general law of the land. The judgment of the learned Judge in the Court below must therefore be reversed; the defendants will be entitled to a total remission of rent for the year 1335; they will be entitled to remission of rent for the year 1336 as regards those lands other than the 100 bighas of Gopalpur which had re-formed and those lands other than the 65 bighas which had re-formed in the other holding Gadai. The same may be said for the year 1337.

The appeal is also allowed for the reasons which I have stated with regard to the year 1334.

The defendant appellants succeed and are entitled to their costs. This order will govern both the appeals Nos. 263 and 264 of 1937.

Agarwala, J.

I agree.