Lal Behari Singh vs Mahabir Mahton and Others

Rowland, J.—These are five analogous appeals together with a cross-appeal in each case. The appellant here is the plaintiff who claims to be sixteen annas landlord of the holding in suit. The claim was for rent of 1338 in four of the cases and of 1337 and 1338 in one. There was also a claim for enhancement. The first Court decreed the rents claimed which are cash rents but refused enhancement. A plea that had been taken was that as the landlord had neglected to maintain irrigation facilities for the lands in suit, the lands had deteriorated, could not produce such crops as were formerly produced and therefore the full rent should not be decreed much less any enhancement be allowed. The first Court found that in the Record of Rights it was entered that the full cash rents recorded were payable so long as the landlord maintained irrigation arrangements and that such irrigation arrangement had not been maintained and kept in order. On this ground the Munsif refused enhancement, but did not give the defendants any abatement of the cash rental.

On appeal the lower appellate Court affirmed the finding that Gilandazi had been completely neglected by the malik and held that the lands in suit had so deteriorated as to be in their present condition capable of producing only one-third of the outturn on which the existing cash rents were presumably based. Accordingly he reduced the amounts of the rent decree to one-third in each case of the cash rents claimed. This is the subject of the appeals of the plaintiff. It is contended that the plea of suspension of rent was not available to the defendants on the pleadings, still less should the abatement of rent to one-third have been allowed. That the evidence of the plaintiff regarding maintenance of Gilandazi had not been considered by the lower appellate Court and it was further contended that this Court might remand the suits for further findings after considering evidence regarding rent suits relating to subsequent years and the results of the deputation of a Commissioner in subsequent years to examine and report on the condition of the land. I can find no substance in the contention that the plea for suspension or abatement of rent was not available to the defendants. It is well settled that the principle of Section 38, Ben. Ten. Act, applies not only to suits instituted by a tenant for the abatement of rent but to a plea taken by a tenant in a suit in which he is a defendant.

The decision in Dhanukdhari Singh v. Mt. Bibi Amma 1933 Pat 441, relied on by the lower Court, is in point. The tenant can certainly raise such a plea, and what he has to show is permanent deterioration leading to failure of outturn. As regards the alleged failure of the lower appellate Court to consider the plaintiff''s evidence regarding the Gilandazi done by him, that evidence consisted of the uncorroborated statement of the plaintiff himself unsupported by papers, and the lower appellate Court may be considered to have adopted the reasoning of the Munsif who demonstrated adequately that the evidence of the plaintiff alone could not be relied on for this matter. As regards the prayer for admitting additional evidence Mr. Khurshed Husnain said that he asked for this under Order 41, Rule 27(b); but I am unable to find that this falls within that rule. The argument was that as the lands in suit were found to produce good crops in subsequent years, it cannot be held that there was permanent deterioration. Therefore the conditions for abatement of rent in the years in suit are not fulfilled. It appears, however, that between the date of the years in suit and the subsequent date at which the lands were found to be bearing good crops, there had been action taken for restoring the means of irrigation. That being so the fact that after the restoration of the means of irrigation the lands could bear good crops will not by itself negative the finding of a permanent deterioration. As pointed out in previous decisions of this Court the expression "permanent" must be read with reference to the circumstances of the case.''

The deterioration must, as I understand it, be such deterioration as would continue to have effect from year to year unless and until something is done to remedy it. The fact that it can be remedied by the expenditure of capital and labour will not prevent its being regarded for the purposes of Section 38 and similar provisions of the law as a permanent deterioration. This point, therefore, fails. It was, however, contended that the lower appellate Court should not have reduced the rent for the years in suit to the extent of two-thirds, that is to say, decreeing the suits for only one-third of the recorded rents because in the written statements of the defendants it was not stated that the productive capacity of the lands had deteriorated to the extent of two-thirds but to the extent of one-half. What the written statements say is that the lands now are producing or are capable of producing not more than one-half of what they produced at the time when cash rents were fixed. The defendants in evidence have gone further than this by giving figures from which the lower appellate Court has calculated that the present productive capacity is only one-third of the former capacity. In my opinion the plea of reduction of rent should not have been given effect to a greater extent than is warranted by the written statements, that is to say the rent to be decreed should be the cash rent of the holding subject to a deduction of one-half and not a deduction of two thirds. This covers all the points raised in the appeal.

The respondents have presented a cross-objection in which they contend that the suit is not maintainable for the entire rents of the holdings. The contention is based on Section 78, Land Registration Act, the fact being that the plaintiff is a recorded proprietor in the tauzi in which the lands are situated to the extent of one anna odd whereas he has sued for sixteen annas rent of the holdings. It is Argued that he cannot get rent to the extent of more than the share for which he is registered. This objection is fully dealt with in the judgments of the Courts below and it has been shown that by civil Court partition the holdings in suit have fallen entirely in the takhta of the plaintiff. Therefore the defendants are liable to pay the whole rent to this plaintiff. A similar objection was raised in Parshmoni Dassi v. Nabokishore Lahiri (903) 30 Cal 773, and it was explained that a co-sharer who, by an amicable arrangement among the co-sharers, has been put in possession of a larger share than his registered share in some mauzas of an estate and a less share or no share) in others is not debarred from obtaining a decree for the rent due to him so long as the total interest which he holds in all the mauzas represents his registered interest in the entire estate. The case is covered by that decision and in my opinion the decree of the Courts below is in this respect correct. The result is that the cross-objection is dismissed with costs. The appeal succeeds to the extent indicated above. The plaintiff will get a decree accordingly. Costs of the lower Courts will be calculated as they would have been calculated if the decree had been for one-half rent instead of one-third. Parties will bear their own costs of the appeal in this Court.