Rameshwar Mandar vs Badri Sahu

Chatterji, J.—This appeal arises out of a suit for recovery of arrears of rent for the years 1329 to 1331 at the rate of Rs. 143-9-0 per year in respect of an area of 14 acres and add. The defendant pleaded dispossession from about ten cottas of the holding, payment of rent to the previous malik and also ten acres had become entirely sandy and not capable of bearing rectal of more than two annas in the rupee. The learned Munsif disallowed all the pleas but granted a reduction of rent to the extent of Rs. 25 per year on the ground that plot No. 3 measuring about eight bighas had deteriorated. Both the plaintiff and the defendant preferred appeals against the decree before the learned District Judge who dismissed the appeal of the defendant except in respect of certain costs, but decreed the appeal of the plaintiff and disallowed the reduction of rent granted by the Munsif. In the course of the appeal the District Judge appears to have taken in evidence the report of a local enquiry made by the Cess Re-valuation Officer which showed that plot No. 3 was growing both paddy and kakri and gave better yield.

It is urged in appeal that the learned District Judge was not justified in accepting the report at the appellate stage and specially without giving the defendant an opportunity of producing rebutting evidence. There can be no doubt that the document that was accepted in the Appellate Court was very material in considering the question of deterioration. In order to do complete justice between the parties an Appellate Court may allow additional evidence to be produced so as to enable it to pronounce judgment. It has been laid down in Musammat Naraini Koer and Others Vs. Gena Missir and Others, , that the only function of a Court of facts is to do complete justice between the parties, and a trial Court or even an Appellate Court should not reject important documents as to the genuineness of which there can be no possible room for doubt. It may be taken that the provision of law has been rather widely stated in this case; still there can be no doubt that an Appellate Court may accept a document the genuineness of which is beyond question in order to enable it to pronounce judgment. As laid down by their Lordships of the Privy Council in Indrajit Pratap Bahadur v. Amar Singh 74 Ind. Cas. 747 : 2 Pat. 676 : 50 I.A. 183 : 21 A.L.J. 554 : 4 P.L.T. 447 : AIR 1923 P.C. 128 : 1 Pat. 345 : 33 M.L.T. 233 : 45 M.L.J. 578 : 18 L.W. 728 : 25 B L.R. 1259 : 28 C.W.N. 277 : 39 Cri.L.J. 318 (P.C.), rules of procedure have not been made for the purpose of hindering justice. In the next place, the report of the cess enquiry is of the year 1926 and came into existence after the disposal of the original suit. It has been held in Hill v. Satan Singh 50 Ind. Cas. 857 : (1920) Pat. 4 : 4 P.L.J. 312 that public document coming into existence subsequent to the filing of second appeals may be admitted in evidence in the High Court. There is an observation made at page 7 Page of (1970) Pat.--[Ed.] which may be quoted in this connexion:

There is nothing in law to prevent these documents that have come into existence since the appeals were filed from being admitted into evidence. Not only that it is permissible for the Court to admit them but that it appears to me that it is imperative upon this Court to take these documents into evidence in order to see if they affect the disposal of the present appeal.

This does not mean, as supposed by the learned District Judge, that he is bound to admit a public document which came into existence after the trial of the suit and before the appeal."

The observation quoted by me was made by their Lordships with reference to public documents which came into existence as a result of the Champaran Agrarian Act enacted since the disposal of the case in the Appellate Court on the question of the amount of rent which would be specially affected by the intermediate events, and cannot be taken as a general expression applicable to all documents. Be that as it may, the learned District Judge did not, in my opinion, commit any error of law in having admitted this report in evidence. All that can be said is that the defendant should have been afforded an opportunity of adducing a rebutting evidence. This opportunity was afforded to him by us in this Court and he has produced an order of the Collector modifying the order of the Cess re-valuation Officer. All that the Collector did was to reduce the valuation to Rs. 10 per acre from Rs. 15 per acre which had been assessed by the Deputy Collector. But this does not take away the effect of the observation made by the Deputy Collector. He reports as a result of inspection that "the condition of plot No. 3 has much improved this year, both paddy and kakri are grown."

This shows clearly that the case of permanent deterioration of plot No. 3 in arrears cannot be supported. Moreover, the learned Munsif although he granted reduction of rent on the ground of deterioration does not state anywhere in his judgment that the soil of the holding has become permanently deteriorated. All that he pays is this:

The land was previously dhanahar as the khatian shows. Paddy does not grow there now. It has certainly, deteriorated in spite of tarbuza being grown there.

In another part of his judgment he states:

There can be no doubt that kakri and tarbuza etc., are grown on 8 or 10 bighas land of the defendant * * * * I have no doubt that defendant grows tarbuza etc., on plot No. 3.

The learned Munsif has proceeded on the ground that the defendant is not getting as much profit as he would have got if paddy had been grown; but that is not the way to consider whether there had been a permanent deterioration of the soil of a holding It is true as held in Gouri Pattra v. Redy 20 C. 279, that a deterioration would not cease to be permanent if by the application of capital and skill the cause of deterioration might be removed and that the question of permanent deterioration must be construed with reference to existing conditions Now, if we refer to existing conditions we find that kakri and tarbuza, etc., are being grown admittedly on this land as admitted by defendant''s witnesses. Then the Commissioner, who went to the locality the second time, found, as mentioned in the judgment of the learned Munsif, that paddy was sown over plot No 3 but the growth was very scanty. Further in a subsequent year the Cess Revaluation Officer saw this land and found both paddy and kakri were grown. Therefore, the soil could not be said to have permanently deteriorated with reference to the existing conditions. In fact, as I have already stated, no finding of permanent deterioration was even arrived at by the learned Munsif. Then the suggestion of the defence is that about 200 or 300 bighas of land in their village became sandy, because the bandh gave way some five or six years ago; but his next witness admits that the embankment has since been repaired. Having regard to all the circumstances, I am in full agreement with the learned District Judge in his view that no case of permanent deterioration has been made out and that the defendant is not entitled to any abatement or reduction of rent. A point has been raised by the learned Advocate for the respondent that the defendant, as an occupancy raiyat, is not entitled to obtain reduction of rent on the ground of permanent deterioratien of the soil by a plea in a suit brought for recovery of arrears of rent. This contention deserves serious consideration, because Section 38, Bengal Tenancy Act, provides for the reduction of rent on such a ground in suit instituted for the purpose. Our attention has, however, been drawn, on behalf of the appellant, to a decision of this Court in Babu Sukhraj Rai Vs. Ganga Dayal Singh and Others, , in which the view has been taken that it is not necessary that the tentant should himself institute a suit u/s 38 Bengal Tenancy Act, for abatement of rent on the ground of a permanent deterioration of the land and that he may plead non liability ou that ground in a suit by the landlord for the recovery of rent. Section 18 of the previous Rent Law (Act X of 1859) provided that every raiyat having a right of occupancy was entitled to claim an abatement of rent on the ground of diminution in area by diluvion or otherwise as also on the ground of a decrease in the value of the produce or the productive powers of the land by any cause beyond the power of the raiyat.

The provision of that section appears to have been split up into two portions in the present Rent Act of 1885, namely, Sections 38 and 52(1)(6). In the latter section it is enacted in general terms that every tenant shall be entitled to a reduction of rent in respect of any deficiency proved to exist in the area of his tenure or holding, thereby implying that a tenant may obtain a reduction of rent under a Section 52(1)(b) on the ground of deficiency in area either by a suit specifically brought or by a plea in a suit for rent; but in the corresponding Section 38 a limitation has been imposed that an occupancy raiyat may institute a suit for the reduction of his rent on the ground of a permanent deterioration. Having regard to the difference in the phraseology of the original section and the two corresponding sections in the present Act, it is a question as to whether a claim for reduction of rent on the ground of permanent deterioration is available to a tenant, by way of a plea in defence, in an action brought by the landlord to recover arrears of rent. Certainly such a plea is available to him in a proceeding for settlement of fair rent, because Section 35, Bengal Tenancy Act, provides that the Court shall not in any case decree any enhancement which is unfair or inequitable and all the circumstances of the holding have to be considered in settling a fair rent. The case of Gosta Behari Pramanik and Others Vs. Hem Chandra Das De and Others, referred to by the learned Advocate for the appellant, is perfectly distinguishable, because that was a case in which a part of the holding had been acquired by the Government under the Land Acquisition Act and there the claim of abatement was based on the ground of diminution in area and as such covered by the provisions of Section 52, Bengal Tenancy Act. The authorities referred to in Babu Sukhraj Rai Vs. Ganga Dayal Singh and Others, are less relating to lands washed away and consequently come within the purview of Section 52(1)(b) and do not affect the applicability of Section 38, Bengal Tenancy Act. However, it is not necessary to decide the point because the finding that there has been no permanent deterioration is sufficient to dispose of this appeal.

The appeal is dismissed with costs.

Fazl All, J.

I only wish to express my opinion on one of the questions raised in the course of the argument by the learned Advocate for the respondent Section 38, Bengal Tenancy Act, says that an occupancy raiyat holding at a money rent may institute a suit for the reduction of the rent on the ground that the soil of the holding has, without the fault of the raiyat become permanently deteriorated by a deposit of sand or other specific cause, sudden or gradual. The question then arises as to whether a tenant can claim reduction of rent on the ground referred to when defending a suit brought by the landlord for recovery of rent. The point is in fact concluded by the decision of a Division Bench of this Court in Babu Sukhraj Rai Vs. Ganga Dayal Singh and Others, We are, however, asked to question the soundness of this decision on the ground that all Section 38 provides is that a tenant may claim reduction of rent on the ground of permanent deterioration of the land in a suit instituted by himself and this will not cover a case where the tenant is not himself the plaintiff in the suit but is impleaded as a defendant. Speaking for myself, I am not prepared to accept this argument. In the decision to which I have referred Sir Jwala Prasad, J., has given elaborate reason for showing that to hold what we are asked to hold by the learned Advocate for the respondent in this case would be taking a very narrow view of Section 38. The view taken by the Division Bench of this Court is materially supported by several decisions of the Calcutta High Court and is in accord with general principles. The mere declaration by the Legislature that a tenant has certain rights which be might enforce by suit cannot by itself suggest that that right cannot be claimed by way of defence. If the right is there, it can be enforced by a suit as well as claimed by way of defence. The difference in the language of Sections 38 and 52 may be, and, in my opinion, is purely accidental. In any cases 38 does not say that the tenant cannot claim reduction of rent otherwise than by a suit and we cannot read into the section words which are not there. There is also nothing to show that the policy of the Legislature was that the tenant must be forced to bring a suit in order to secure reduction in the rent on the ground of permanent deterioration of the soil. I am thus unable to construe s 38 in the way proposed by the learned Advocate for the respondent My learned brother has, however given elaborate reasons for holding that this appeal is liable to be dismissed on other grounds and I agree with this view as well as with the order proposed.