Sheonandan Prasad Singh vs Krishna Chandra and Others

Agarwala, J.—This appeal is by the defendant, an occupancy raiyat, and arises out of a suit for rent for the years 1348 to 1346. The defence was that as the land had been covered with sand for the last 15 years no rent was payable in respect of it. The first Court found that there were four feet of sand on the land and dismissed the plaintiffs'' suit. The appellate Court has confirm, ed the finding that the land is covered with sand but has held that the effect of the repeal of Section 88, Bihar Tenancy Act, by the Amending Act of 1938 is to deprive the tenant of the right to relief in respect of the land covered by sand.

The history of the legislation relating to a tenant''s right to have his rent reduced may be briefly summarized as follows:

Under the Rent Act of 1859 an occupancy raiyat was entitled to abatement of rent on account of reduction in area due to diluvion or other cause or to deterioration in the productivity of the land not attributable to the raiyat himself. Section 52, Ben. Ten. Act of 1885, conferred upon all the tenants a right for reduction of rent in respect of any deficiency proved by measurement to exist in the area of his tenure or holding; and Section 88 conferred upon occupancy raiyats the right to institute a suit for the reduction of rent on the ground either that the soil of the holding, without the fault of the raiyat, had become permanently deteriorated by a deposit of sand or other specific cause, or on the ground that there had been a fall in the average local prices of stable food crops.

In 1938, there were extensive amendments of this Act and Section 88 was repealed altogether. A new section, namely Section 52A expressly entitled a raiyat to reduction of rent on account of a portion of his holding being diluviated. Another new section, Section 112A, empowered the Collector on an application by an occupancy raiyat or if the Governor, by notification, directs the settlement of rents of occupancy holdings in any area shall be-made under the section, to remit rents of any occupancy holding if the soil or a portion or the whole of the holding has without the fault of the raiyat, become temporarily or permanently-deteriorated by a deposit of sand, by submersion under water or by any other specific cause, or if the landlord of the holding has failed to carry out the arrangements in respect of irrigation which he is bound to maintain.

In a series of cases of this Court it had been held, before the amendment, that irrespective of the provisions of Section 88, which merely conferred a right of suit on occupancy raiyats for reduction of rent in the circumstances mentioned above, any tenant was entitled in a suit against him for rent to obtain an abatement on proof that the whole or a part of his holding has diluviated: see Babu Sukhraj Rai Vs. Ganga Dayal Singh and Others, , Raghunandan Prasad Singh and Others Vs. Lalit Mohan Ghosh, , Dukha Lal Choudhuri Vs. Mt. Manabati and Others, and Fouzi Lal Kurmi and Another Vs. Sm. Dhana Kumari Devi and Others, . These cases clearly establish that; the tenants'' right to relief on account of the whole or a part of his holding having been diluviated did not depend on his having established that right in a suit brought by him or that the right to relief was confined to occupancy raiyats. The repeal of Section 88 by the Amending Act of 1938 has merely done away with the statutory right of an occupancy raiyat to obtain by a suit a reduction of his rent on the grounds mentioned in that section, namely deterioration by deposit of sand or other specific cause, or a fall in the average local prices in stable food crops.

The question is whether the amendments have deprived a tenant of obtaining relief by way of abatement in a suit in which he is not the plaintiff. Prima facie, I can see nothing in the amendments which expressly or impliedly deprive the Court of the power of granting relief in such oases, if the power to grant that relief was not dependent on statutory provisions. As long ago as 1864 in Sheik Enayutoollah v. Sheik Elaheebuksh (1864) SW.R. Gap. No. Act 10 Rule 42, this question was considered. In that case 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.

The High Court of Calcutta 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, Rent Act of 1859 which was then in force, conferred only upon occupancy raiyats a right to abatement.

It was stated that the rule was founded on principles of equity, justice and good conscience and was not dependent on any statute. Although the repealed Section 88 has deprived an occupancy raiyat of his right to relief as plaintiff in a suit, there is nothing in the amendment which affects the operation of the rule of equity, justice and good conscience under which the Courts have always claimed a right to grant a tenant relief in oases such as the present.

The learned advocate for the respondents suggested that as the Legislature in Section 112A has provided a procedure by which an occupancy raiyat is able to obtain a remission of his rent on account of deterioration of his holding the civil Courts have lost their power to grant the relief which they formerly granted. There is no authority in support of that proposition and it appears to be in conflict with the reasons which had always led the Courts to grant relief to tenants, whether occupancy raiyats or otherwise, even in circumstances not expressly provided for by the tenancy laws. Up to the amendment of 1938 an occupancy raiyat had a right to maintain a suit for abatement of rent on the ground that his holding or a portion of it was covered with sand, and both occupancy raiyats and other tenants could, in a suit for rent against them, claim relief on the same ground, relying on the rule of equity, justice and good conscience. By this repeal of Section 38, an occupancy raiyat has lost his right of suit and by the enactment of Section 112A a remedy by way of application to the Collector has been substituted for it. The right of every tenant of agricultural land, including occupancy raiyats, to obtain relief by way of abatement in a suit for rent has not however been affected by the amendments.

In my view, therefore, the decision of the Munsif was right and that of the appellate Court must be set aside. The decree of the Munsif will be restored and the defendant will be entitled to his costs throughout. Leave to appeal under the Letters Patent is granted.