Nripendra Nath Chatterji vs Jugal Prasad Mandal and Others

Wort, J.—This appeal arises out of an action for rent in which the defendants claimed abatement and in the result appears to have claimed total abatement on the ground that the lands in suit were cover ad with water of the Ganges for the years for which rent was claimed. It is contended by Mr. Mazumdar appearing on behalf of the plaintiff-appellant that the learned Judge is in error both in law and on the facts of the case, inasmuch as in the first instance the claim by the defendants was merely for an abatement in the sense that the lands were less fit for cultivation than they would have been but for the fact that the lands had become diluviated and when they reappeared sand was deposited on them. I must say that it looks very much as if it had been the defendants'' original case, because an application was made for the appointment of a commissioner for the purpose of ascertaining these facts; but that appears to have been abandoned and ultimately the Judge refused to appoint a commissioner.

In the result the Judge came to the conclusion that the lands were totally unfit for cultivation for the years in suit. Whether this was so or not was a matter for the Court below and I cannot see how this Court can interfere, although I must say, if I had to try this case in the first instance, that I should have very grave doubts whether the defendants'' case in this regard was made out. Not only is the evidence vague but it appears to be somewhat contrary to the case that was made out at first. But this much is to be said for the defendants that in para. 5 of the written statement defendant 1 does state that "the rent claimed land was entirely washed away by the Ganges" in two years.

This appears to have entitled the landlord to rent at least for some of the years in suit. The Appellate Court accepted the finding of the trial Court which was to this effect:

On this point the evidence is ex parte and unchallenged. Defendant has pledged his oath and has examined a boundary man to say that the entire land has been diluviated and no area was cultivable in the year in suit.

Strictly speaking I suppose he should have amended the defence before being allowed to make a case of that kind. But it has been accepted, as I have said by the trial Court and the Appellate Court, and I have no jurisdiction to interfere as much as I feel inclined to. As regards the point of law the matter seems to be perfectly clear. Mr. Mazumdar relies upon Section 180, Bihar Tenancy Act, which amongst other things provides as follows:

A raiyat...until he acquires a right of occupancy in the land, shall be liable to pay such rent for his holding as may be agreed upon between him and his landlord.

Mr. Mazumdar contends that that Sec tion. applies and not Section 52. Now, Section 52 is a much -wider Section than Section 180, inasmuch as it deals with every class of tenants. The words of the Section are "Every tenant shall..." and we know from the definition of tenant in Section 4 of the Act that a "raiyat" is simply one class of tenant. Section 52 undoubtedly gives right of abatement, and as these defendants are noi raiyats but tenure-holders, as has been held by the Judge in the Court below, it seems to me on the question of law that the learned Judge was right in holding that, if the facts were established, the tenants would be entitled to abatement.

In the paragraph of the written statement to which I have referred the defendant agrees to pay one anna per bigha for the purpose of fixing his rights in the land when it should reappear from water. Ordinarily stated the Judge would have given judgment for the plaintiff for this amount; but he points out that he is unable to assess that as the area has not been shown. If it had been a matter of any great value to the landlord I might incidentally say in parenthesis that it is of greater value to the defendants,

I might have remanded the case for this question to be determined. But as it is of no particular value to the plaintiff-landlord, I do not propose to adopt that course. With these observations I hold that the appeal fails and must be dismissed with costs.