Medini Kumar vs P.C. Mallick and Others

Shearer, J.

1.This second appeal, which is by the defendant, arises out of a suit to recover arrears of rent for the period from 1848 to 1351 Fs. The defendant is a tenure holder, his tenure being described in the record of rights as "Istimarari lekin mukarrari nahin." The rent there recorded as legally payable is Rs. 8-4-8 annually. Admittedly, however, part of the land comprised in the tenure has diluviated and part is covered with sand, and in the years immediately preceding 1348 Fasli, the landlord accepted rent at the rate of 5 annas a bigha. Apparently, this was the rent which under some kind of amicable arrangement between their landlord and themselves occupancy raiyats in the village paid when their land diluviated or was rendered sterile by deposits of sand. In 1348 Fasli and the ensuing years the plaintiff, however, demanded from the defendant the rent legally payable for the tenure on the ground that, in consequence of the amendments which had been made in the Bihar Tenancy Act, tenure holders are no longer entitled to claim an abatement or apportionment of rent.

The learned Subordinate Judge is, of course, correct in saying that there is no specific provision in the Bihar Tenancy Act under which a tenure holder can claim an abatement. In England, however, it has for a very long time been recognised that, as rent is a profit which issues out of the land, then, if a tenant is deprived of a portion of his land by an act of God, such as the incursion of the sea, he is entitled to an apportionment by operation of law. This principle has been recognised and adopted by the Courts in this country, and, among others, by this High Court, see for instance, Babu Sukhraj Rai Vs. Ganga Dayal Singh and Others, .

It is, however, also well established that when a tenant claims an abatement of rent on the ground that a portion of the land comprised in his holding or tenure has diluviated the onus is on him to show how much land has been lost in this way. The latest authority on the point which was cited at the bar is Arunchandra Singh v. Shamsul Huq AIR 1931 Cal. 537 of the report of the decision of the Full Bench Rankin C.J. said:

If a tenant after diluvion wants to get rid of his landlord''s prima facie right to the full rent, he may bring his suit for abatement of rent and upon proper proof of the extent of the diluvion his liability will be reduced. If he does not choose this course, then while he can still plead and prove the fact and the extent of the diluvion as a partial defence to a suit for the full rent, he can make no grievance of the fact that the landlord claims it from him. At the one time or at the other it is for the tenant to show what he has lost and that he has been partially discharged from the liability which he assumed as tenant. 4. Now unfortunately, in this case, the defendant did not adduce evidence to show exactly how much of his land had diluviated. Apparently, he relied on the circumstance that in previous years the landlord had been content to receive rent at the rate of 5 annas a bigha. This, as I have already said, would seem to have been the result of some kind of tacit agreement between the landlord and the tenants. It is, I think, quite impossible to say that there is a valid custom in the village under which the defendant was not liable to pay rent at a higher rate than that Moreover, while there can, I think, be no doubt but that the defendant was entitled to an abatement of rent in respect of any of his land which had diluviated, I. am by no means satisfied that he is also entitled to an abatement of rent in respect of land which has been covered or partly covered with a deposit of sand and thereby rendered less productive. Some reliance was placed on the following observation of Prinsep and Beverley JJ. In Gouri Pattra v. H.R. Reily (1993) 20 Cal. 579:

No doubt it is only an occupancy raiyat who is authorised by the Act to bring a suit u/s 38, but the principles laid down in that section are clearly to be taken into consideration in all proceedings for the settlement of rent whatever the status of the raiyats.

It has, however, to be remembered that the case with which the learned Judges were there dealing was a case which arose out of proceedings in a settlement where apparently a fair rent was being settled and also that they used the word raiyats and not tenants. It is not necessary for me to decide this point and, as it is one of some difficulty and I have not had the advantage of hearing argument on it, I refrain from doing so. It is enough to say that the defendant did not discharge the onus which was on him to show exactly the extent of the reduction in his rent to which he was entitled.

Although therefore, for some different reasons, I would affirm the decree of the lower appellate Court and dismiss this appeal with costs.