Maharaja Bahadur Ram Ran Bijaya Prasad Singh vs Aprup Tewary and Others

Agarwala, J.—These 33 appeals are by the plaintiff and arise out of a like number of suits for the rent of different holdings situated in a diara within the plaintiff''s estate in the district of Shahabad. The rent claimed in each case is for the years 1343-1346 Fasli. The settlement by the defendants in every case was for a particular area on a particular rent but it is admitted that there is a custom governing holdings on these diaras in the Shahabad District by reason of which the landlord is entitled in any year only to rent for so much of the holding as was culturable. Accordingly, in the plaints in the suits out of which these appeals have arisen, the plaintiff stated the area of the holding, the area which was according to him under sand or water, and claimed rent for the remainder.

The defence of the tenants was that the area alleged by the plaintiff to have been culturable in the years in suit was inacourate and that the actual culturable area was less. In some of these suits the defendants gave no evidence regarding the culturable area in suit and with regard to other suits they gave evidence which has been disbelieved. The plaintiff gave evidence of his employees who claim to have measured the cultivated area in the years in suit and to have prepared a record of the result of their labours. On this basis the plaintiff based his claim. A part of the diara on which these holdings are situate has been recently surveyed and with regard to 23 of the holdings represented in the present litigation there is an entry in the record of rights showing how much of the holding is not cultivated. By reference to this entry in the record of rights the Courts below came to the conclusion that the measurements relied upon by the plaintiff were inaccurate as in all cases where comparisons were made between the area alleged by the plaintiff to be culturable and the area recorded in the record of rights as culturable, it was found that the plaintiff had claimed rent in respect of an area larger. than that recorded as culturable in the record of rights. Having held that the evidence with regard to the culturable area given on behalf of the plaintiff was unreliable the Court dismissed his suits.

In these appeals by the plaintiff it is contended that the onus of proving what area was exempt from rent by reason of its having not being culturable lay on the tenants and that as there is no evidence on behalf of the tenants in some cases and in the other cases the evidence has been disbelieved the Court should have decreed the suits on the basis of the plaintiff''s claim or at least on the basis of the record of rights in those cases in which the holdings have been surveyed. The case in Raja Kristo Das Law and Others Vs. Abdul Karim and Others, , in which it was held that in such cases the onus lay on the defendants has been overruled by a Full Bench of the Calcutta High Court in Arun Chandra v. Shamsul Huq AIR 1931 Cal. 537. It was there held, where, in a suit for rent, there is an admission by the plaintiff, or it is proved that some diluvion has taken place, the onus is upon the defendant to prove the extent of the diluvion and the corresponding abatement of rent which he may claim.

On behalf of the respondents, on the other hand, it is contended that in the holding with which I am concerned in this litigation, as there is admittedly a custom which debars the plaintiff from claiming rent in any year for more land than was culturable in that year, the onus initially lay on the plaintiff to prove what area was actually culturable. It was also contended that the plaintiff had in fact acknowledged that the onus was on him in these cases by setting out in his plaint the area which he alleged was not culturable and claiming rent only in respect of the remainder. I find it somewhat difficult to appreciate this argument for in this country apart from any special custom or statutory provision, it has long been held that the Courts are entitled to relieve a tenant of agricultural land in respect of rent for so much of his holding as has been rendered unculturable in any year by deposit of sand or by diluvion. In 1864 in (1864) W. B. Gap. No. 42 act 10 Buling.8 this question was considered. There a tenant had sued for abatement of rent on the ground that a part of his land had been washed away and that a part was covered with sand. It was held that unless there was any provision in the contract between the parties to the contrary the tenant was entitled to the relief which he claimed although Section 18, Bent Act of 1849 which was then in force conferred a right to abatement only on occupancy raiyats. It was stated that this rule was founded on the principles of equity, justice and good conscience and was not dependent on any statute. Similarly, it is not founded on any local custom but is a general rule applicable to agricultural land. If, therefore, there is no distinction between the custom now pleaded and the general rule relating to tenant''s right to abatement of rent on account of a part of his holding being covered with sand or water there is no reason why the decision of the Full Bench of the Calcutta High Court relating to the onus of proof in such cases should not be followed. Indeed it appears that it has been followed by my learned brother Manohar Lall, J. in Second Appeal No. 92 of 1941 decided on 22nd September 1941. The facts of that case were that the landlord claimed rent at the rate of Rs. 45-2-6 for 5.67 acres. The defence was that the land was subject to inundation and that by contract between the parties rent was pay-" able only for the area found to be culturable in any year and at the rate of Rs. 4-4-0 a bigha. The defendants did not prove how much land was cultivated for the years in respect of which rent was actually claimed. The trial Court dismissed the plaintiff''s suit on the ground that he had not proved how much land was cultivated during the years in suit. Following the Full Bench decision of the Calcutta High Court it was held by Manohar Lall J. that the onus lay upon the defendant to prove how much of their holding was culturable in the years for which the rent was claimed. The case was remanded to the trial Court to afford the parties an opportunity of proving their respective cases, that is to say, to enable the defendant to prove the area which was in fact cultivated and failing this, for the plaintiff to prove that the rent of the holding was Rupees 45-2-6.

It has been stated before me that Second Appeal No. 777 of 1941 has been settled out of Court. That appeal is therefore dismissed without costs. With regard to the remaining appeals there will be a remand to the trial Court to afford the defendants an opportunity of proving what area was culturable in the years 1343-1346. The costs of these appeals will abide the result. There is one observation which it is necessary to make in view of the fact that there has been a record of rights which applies to 23 of the holdings in suit. There is a statutory presumption that the entrifes in this were correct at the time they were made, namely, in the year 1345. Unless the evidence given by either of the parties convinces the Court that these entries were incorrect the Court is bound to give effect to the statutory presumption.