Partap Narain Singh and Others vs Nathan Singh and Others

Das, J.—The only question raised in these appeals is whether the tenants are entitled to a suspension of the nagdi rent on the ground that the landlord did not provide the necessary irrigation facilities The tenants do not suggest that it was a condition of the tenancy that the landlord should provide those facilities; but it has been broadly argued before us that the obligation of the tenants to pay rent is dependent on the obligation of the landlord to construct and maintain the irrigation works. In my opinion, there is no foundation for the argument in the Bengal Tenancy Act. I have no doubt whatever that in the absence of a contract or custom, there is no obligation on the part of the lendlord to provide the tenants with the means to cultivate their lands. It ir sufficient, for the purpose, to refer to the terms of Section 30(c) and Section 76 of the Act. Section 30(c) provides that the landlord is entitled to an enhancement of rent on the ground that the productive powers of the land held by the raiyat have been increased by an "improvement" effected by, or at the expense of, the landlord during the currency of the present rent; and Section 76 defines "the improvement" to include water channels and other works for the storage, supply or distribution of water for the purposes of agriculture. Under the general law, then, the landlord is entitled to enhancement of rent if he provides irrigation facilities. Can it be argued that he is not entitled to any rent if he fails to maintain those water channels?

It may of course have been a term of the original tenancy that the landlord should provide irrigation facilities. But this is not the case of the tenants in their written statement, nor has the learned Judge in the Court below investigated such a case. As I understand the judgment of the learned Judge, his view is that there is a customary obligation on the part of the landlord to construct and maintain these water channels. The custom, however, was not pleaded in the written statement, and it was not open to the learned Judge to investigate a case of custom in the appellate Court. I do not, however, desire to rest my decision on so narrow a ground, for T am satisfied that, on the facts found by the learned Judge, he should not have held that, in respect of the nagdi holdings there was a customary obligation on the landlord to construct and maintain these water channels. The learned Judge has based his decision, first, on the entry in the record-of-rights, and secondly, on a passage in Mr. O''Malley''s volume on Gya in the District Gazetteers'' series. Now, in dealing with the entry in the record-of-rights, it is necessary to remember that the tenants have both nagdi and bhaoli holdings and that, whereas the area of the nagdi holdings is 3.1 acres the area of the bhaoli holdings is 12''34 acres. Now, in regard to the argument founded upon the entry in the record-of-rights, the learned Munsif said as follows:--"The khatian filed in the case, Ex. F, shows that the fact that the landlord is responsible for irrigation is noted as one of the incidents of the bhaoli holding and not of the nagdi holding." The learned Judge in the Court below, without making any attempt to meet the point made by the learned Munsif makes a sweeping assertion that "the entry in the surrey khatian (Ex. F) shows that the expenses for irrigation and gillandazi should be born by the landlords." In order to save a remand, I have myself examined the survey khatian, and it is perfectly clear that the entry recognizing the obligation of the landlord to provide irrigation facilities has reference to the bhaoli holdings and not to the nagdi holdings. The passage from the District Gazetteer quoted by the learned Judge undoubtedly supports his view; but a careful reading of Chap. XI shows that the passage upon which the learned Judge has relied has no reference to nagdi lands. Now it is well known that, though nagdi rents are payable in Gya, the genera system of rent payment is that known as bhaoli. Mr. O''Malley points out that this system is a necessary result of the physical configuration of the country and is intimately connected with the system of irrigation in vogue. Now Gya owes not only its fertility but almost its very existence as an agricultural country to artificial irrigation which it is impossible for the tenants to undertake,. Now obviously there would be no inducement to the landlord to undertake the construction and maintenance of the artificial irrigation if the tenant paid a fixed cash rent to the landlord. This is the origin of the system of rent payment prevalent in Gya, under which the landlord provides the irrigation facilities and receives a fixed share of the produce in return. But it is obvious that his obligation is in respect of bhaoli lands and not of nagdi lands. Mr. O''Malley makes this perfectly clear in the following passage:--"Without pains and ahars the tenant in many parts would get no rice crops; and on the other hand, if he paid a fixed cash rent to his landlord, the latter would be in a position to spend the money in other ways and to neglect the duty of laying out channels and embankments and of keeping them in order. Custom has therefore decreed that these works shall be made and maintained by the landlord, each tenant paying the quota of the expense by giving a certain proportion of the harvest as rent."

In my opinion the decision of the learned Judge on the question of the nagdi rent cannot be supported; I would allow the appeals so far as this point is concerned, set aside the decision of the learned judge in the Court below, and restore the decision of the Court of first instance. His decision on the question of bhaoli rent must however be affirmed.

The appellants are entitled to their costs proportionate to their success both in this Court and an the Court below.

Ross, J.

I agree that in this case it has not been shown that the tenants are entitled to remission of cash rents when the landlord fails to maintain the irrigation works. But I see no reason in principle why there should be an obligation to maintain these works in the case of bhaoli holdings and not in the case of nagdi holdings, although the inducement to do so in the former case is greater than in the latter. If the obligation was there originally and prevails by custom, it should affect both classes of lands equally. But there is no proof in this case that the obligation was there either from the inception of the tenancy or by custom in the case of nagdi holdings. In the case of bhaoli holdings there is the evidence of the record of-rights. It is significant that the landlord does not deny his obligation to maintain irrigation works, but adduced evidence to prove that that obligation had been fulfilled. This evidence has been disbelieved. This fact, however, does not relieve the defence from proving that in case of nagdi holdings the obligation was th3re. This has not been done. I therefore agree to the order proposed.