Khushi Lal Jha and Others vs Kanak Lal Mahto and Others

Fazl Ali, C.J.—These appeals arise out of seven suits for rent in which the Courts below have given effect to the plea raised by defendant 1 in each suit that the soil of the holding which was the subject-matter of the suit had deteriorated on account of the deposit of sand and giving effect to this plea have remitted 25 per cent, of the amount of rent payable for the holding. The landlord plaintiffs have preferred these second appeals to this Court and the contentions which have been pressed on their behalf are as follows: (1) that the Courts below should not have given effect to the plea of defendant 1, inasmuch as in law no plea for abatement of rent can succeed unless it is raised on behalf of the entire body of tenants and (2) that the plea of abatement is no longer available to the tenant-defendants inasmuch as Section 38, Bihar Tenancy Act, has been repealed and u/s 112A of the new Act, it is only the revenue Court which can grant partial or entire remission of rent if the soil of a holding has become either temporarily or permanently deteriorated by deposit of sand, by submersion under water or by any other specific cause, sudden or gradual. So far as the second contention is concerned it has been argued before us that the effect of the enactment of Section 112A, Bihar Tenancy Act, is to deprive the civil Court of the power to grant remission of rent and to transfer that power to the revenue Court.

In support of his first contention the learned advocate for the appellant relies on Kesho Prasad Singh v. Mahesardayal Missior AIR 1933 Pat. 607, Bhoopendra Narain Dutt v. Krishna Dutt (1900) 27 Cal. 417 and Rishee Case Law Vs. Golam Ali Mirdha and Others, . In the first case which was decided by a learned single Judge of this Court it was held that it was not competent to a few out of a body of tenants of one holding to apply for abatement of rent, u/s 38, Bihar Tenancy Act, or to claim an abatement in defence of a suit for rent under that section and that all the tenants must join in such an application or claim.

What had actually happened in that case was that one of the tenant-defendants who had appealed to the District Judge against the decree of the first Court in favour of the landlord had died before the hearing of the appeal and his legal representatives were not on the record when the District Judge heard the appeal. The District Judge in appeal gave effect to the plea of abatement which had been raised by the tenants on the ground that four acres of the holding had deteriorated by deposit of sand. Then there was a second appeal and the learned Judge of this Court had to consider the effect of the absence, in the record of the case of one of the tenant-defendants who had died and whose legal representatives had not been substituted. The learned Judge held that the plea of abatement could not be given effect to in the absence of one of the tenants. In the second case it was held by a Bench of three Judges of the Calcutta High Court that the expression "tenant" in Section 52, Ben. Ten. Act, did not include the case of a mere cosharer tenant who had only a fractional share in the tenure but meant the tenants of the tenure and not one of many tenants. As a corollary from this view it was further held that in a suit for rent brought by some of the several joint landlords against one of several joint tenants for recovery of the plaintiff''s share of the rent payable on account of the defendant tenants'' share of the tenure under a previous arrangement, such tenant defendant cannot claim abatement under the provisions of Section 52, Ben. Ten. Act. In formulating the question which arose in that case for decision Maclean C.J. in his leading judgment observed as follows:

The question we have to decide is whether or not as a mere cosharer in the tenure, he (the defendant) is entitled in this suit to which neither the other cosharer landlords nor the other cosharer tenants are parties to ask for a measurement, and to obtain any reduction, if any deficiency be proved.

I have quoted this observation to make it quite clear that in the particular case which was before the Calcutta High Court all the cosharer tenants were not parties to the suit. Therefore another learned Judge, who was a party to that decision--Banerjee J. explaining that the view which was taken in that case would involve no hardship, added the following observation to those already made by the learned Chief Justice:

But I do not think there is any real hardship in the case, so far as the tenant-defendant is concerned. It is always open to him to bring a suit for abatement of rent, making all the joint landlords and his cosharers in the tenancy parties to the suit, and he can obtain abatement if his case is well-founded.

This observation is important because it emphasises the fact that abatement can be claimed by one single cosharer tenant provided that all the landlords and all the cosharer tenants are parties to a suit. In the third case which was cited on behalf of the appellants it was held that one co-tenant is not entitled to an abatement of rent in the absence of the other cosharer tenants either under the provisions of Section 52, Ben. Ten. Act or the general law. This case also, as I shall presently show, cannot be of much assistance to the appellants, firstly, because it was made clear in the statement of facts which is to be found in the judgment of Page J. who delivered the judgment in" that case, that all the cosharer tenants were not parties to the suit which was a suit brought by a cosharer landlord to recover arrears of rent and in which the main defence was one of abatement, secondly, because that case proceeds upon the basis which is destructive of the second contention raised by the appellant that abatement may be claimed by a tenant not only u/s 52, Ben. Ten. Act, but also under the general law.

These three cases which are relied upon by the appellants afford in my opinion very good authority for the proposition that abatement cannot be claimed by one out of several cosharer tenants in a suit in which all the cosharer tenants have not been impleaded as parties. They cannot, however be regarded as supporting the contention that even though all the cosharer tenants may be parties, one cosharer tenant is precluded from claiming abatement. In my opinion there is nothing in the Bengal Tenancy Act or elsewhere to justify such a view and it will be contrary to principle to give effect to it. Section 188, Bihar Tenancy Act, provides that:

Where two or more persons are joint landlords, anything which the landlord is under this Act required or authorised to do must be done either by both or all those persons acting together, or by an agent authorised to act on behalf of both or all of them.

There is no corresponding section in the Bihar Tenancy Act so far as the cosharer tenants are concerned, but notwithstanding this fact it was urged before us that the principle underlying Section 188 must govern the reliefs claimed by the cosharer tenants whether they are plaintiffs or defendants in a suit. But in Kesho Prasad Singh v. Ramdeni Singh AIR 1923 Pat. 397. Das J., strongly doubted whether that section could be applied to a case of tenants asking for abatement of rent. Indeed on principle I cannot see any justification for holding that one out of several cosharer tenants cannot claim abatement by way of defence in a suit to which all the other cosharer tenants are parties. To hold otherwise will manifestly be unjust because it may be that the other cotenants, either on ground of poverty or because they are interested in an infinitesimal share in the land or for some other reason, may not come forward to take an active part in the litigation, but that should be no reason for depriving one of the tenante of a relief to which he may be justly entitled.

There remains the second point which was urged equally strongly by the learned advocate for the plaintiffs. That point, however, is fully covered by the decision of Agarwala J., in Sheonandan Prasad Singh v. Krishna Chandra AIR 1941 Pat. 611. It was held by that learned Judge in that case that though by repeal of Section 38, an occupancy raiyat may have lost his right of suit to obtain abatement of rent under that particular section and by the enactment of Section 112A, a remedy by way of an application to the Collector may have been substituted for it, yet there is nothing in the amendment which abrogates the rule of equity, justice and good conscience under which the Courts have always granted a tenant relief. The view expressed by the learned Judge in that case is supported by several decisions and I think it is too late in the day now to question the view that apart from the specific provisions in the Tenancy Act, a tenant is under the general law entitled to claim abatement of rent if his holding is not the same as it was when he was inducted upon it either by reason of diluvion or by reason of the deterioration of the soil by deposit of sand or other causes. The question as to this general right seems to have incidentally arisen in Kesho Prasad Singh v. Ramdeni Singh AIR 1923 Pat. 397 and Das J., dealing with it observed as follows:

It has been urged before us that to allow the tenant to claim abatement of rent in a suit to which the cosharer landlords are not parties is to affect the integrity of rent without giving any opportunity to the other cosharer landlords to be heard . The argument assumes that what is paid by a tenant to a cosharer landlord under an arrangement is, in fact, rent; but it is nothing of the kind.... That which is payable by a tenant not to his landlord, which must mean the whole body of landlords, but only to one of them is not rent. A suit by a cosharer landlord for that which is payable to him by a tenant on account of the use or occupation of his share of the land is not a suit contemplated by the Bengal Tenancy Act, the decree passed in such a suit is not a decree under 9 the Bengal Tenancy Act and such a decree is executed under the CPC and not under the Bengal Tenancy Act. It may be urged that if what is payable by a tenant to a cosharer landlord is not rent, then Section 52 is clearly inapplicable. That may be so; but the principle underlying Section 52 is undoubtedly applicable and it would entitle the tenant to take up the attitude either that as he is no longer in possession of the landlord''s share of the land held by him there ought in equity to be an apportionment of that which was hitherto payable by him to the landlord on account of the use or occupation of his share of the land; or that the condition under which he agreed to pay to the landlord his share of the rent no longer exists and that he would not pay to the landlord his share of rent unless the cosharer consents to an apportionment of rent.

These observations are clearly based upon the assumption that the principle underlying Section 52 may be invoked in cases which are not strictly governed by the Tenancy Act, But apart from this case there are other cases in which it has been held that a relief by way of abatement is open not only to an occupancy tenant but to other tenants also and that a relief byway of abatement may be claimed as a defence in a suit by the tenants even though Section 38 of the old Tenancy Act was confined only to suits which may be brought by an occupancy raiyat for reduction of his rent on the ground of deterioration of the soil of his land and other grounds. Thus even when Section 38 was part of the Tenancy Act, all that it provided was that an occupancy tenant was entitled to bring a suit for reduction of rent. It did not provide in so many words that either an occupancy tenant or a tenant other than an occupancy tenant could claim abatement by way of defence in a suit for rent brought against him by the landlord. Notwithstanding this fact it was held in a number of cases that such a defence was open to any tenant. Such a view could have been based only on the ground that on general principles and apart from the Tenancy Act a tenant could be held to be entitled to abatement of rent in proper circumstances. Thus I am not as at present advised, in a position to hold that the view expressed by Agarwala J. is not correct.

As to the contention that whatever may have been the general law before the amendment of the Tenancy Act, under the Act as it stands, the civil Courts have been deprived of the power to grant relief to a tenant claiming abatement of rent, the same power having been transferred to a revenue Court, by Section 112A of the Act, all that I consider necessary to say is that I am unable to accede to such an argument, because there is no clear provision to the effect that the power which was once exercised by the civil Courts has now been taken away and the mere fact that Section 38 of the old Act has been repealed, cannot affect such power as could be exercise and was exercised independently of that section.

Thus in my opinion both the grounds which have been raised in these appeals on behalf of the appellants fail and I would accordingly dismiss these appeals with costs. There will be one set of hearing fee.

Sinha J.

I agree.