Sital Prasad and Others vs Surendra Nath Chatterji

Rowland, J.—This appeal by the plaintiffs arises out of a suit for the realisation of nagdi rent for the years 1342 to 1345 for a holding of 28 bighas 2 kathas held at a jama of RS. 109-4-3. The defence was that a portion of the holding having diluviated, the defendant was entitled to proportionate abatement of rent. The precise area diluviated was not mentioned in the written statement. The trial Court appointed a Pleader Commissioner who found that at the time of his local enquiry 19 bighas had diluviated and about 9 bighas was in existence and fit for cultivation. There is some evidence that this area has subsequently been further reduced by diluvion. The Munsif came to the conclusion that in the years in suit the holding had been culturable and the defendant was not entitled to any abatement. Accordingly he decreed the full claim of the plaintiffs. On appeal the District Judge was not satisfied with the view that the entire area of the holding had been above water and culturable in the years in g suit. He thought it unreasonable to suppose that the diluvion set in only in the last year before the Commissioner''s visit and suddenly cut away so much as 19 bighas of the suit lands. At the same time he was not prepared to accept the evidence of the defendant who had deposed that only 7 bighas remained in 1345 and that 19 bighas had been diluviated before the years in suit. The District Judge said:

The fact of the matter seems to be that the land began to diluviate some years ago and the process of erosion continued with the result that in 1345 only 9 bighas were left.

That is a finding as to the area of the holding that remained in 1345. As to the previous years, the District Judge said:

At this distant date it is next to impossible to find out with any amount of exactitude as to how much land diluviated in which of the suit years.

This appears to be substantially a finding that the party on whom the burden of proof lay had failed to discharge it. The District Judge then addresses himself to the matter, in his words: "more according to equity than according to law" and gives the plaintiffs a decree for half the amount claimed by them. In second appeal it has been urged that since the repeal of Section 38, Bihar Tenancy Act, it was not open to the Court to grant abatement of rent in consequence of the holding having deteriorated by fluvial action. We were shown the amendments made in the Tenancy Act successively by Bihar Acts 8 of 1937, 9 of 1938 and 11 of 1938 and we have been referred to some decisions in which some of the amended sections have then construed. I do not think it necessary to discuss that line of reasoning because there is no question on the facts before us of applying Section 38 or even Section 112A, Tenancy Act. The matter is governed by Section 52 of the Act which still stands in the form in which it stood before the amendments referred to. The relevant portion of the section runs thus:

Every tenant shall be entitled to a reduction of rent in respect of any deficiency proved by measurement to exist in the area of his tenure or holding as compared with the area for which rent has been previously paid by him.

The most authoritative recent pronouncement on this section is in the Special Bench decision of this Court in Dukha Lal Choudhuri Vs. Mt. Manabati and Others, . It was there stated

Whatever may be the state of the law of England it has always been held in this country that a tenant, whether he be an occupancy raiyat or other-wise is entitled to abatement of rent if the whole or part of the land held by him is dlluviated. This principle has now received statutory recognition and is embodied in Section 52, Ben. Ten. Act.

In the particular ease this Court ordered a remand for certain findings and the terms of the remand are relevant as showing unmistakably where their Lordships placed the burden of proof. It was said:

If the Court below comes to the conclusion that the whole or any portion of the lands forming the tenure had diluviated in any of the years in suit "Causing thereby a deficiency in the area of the tenure, the defendants will be allowed proportionate abatement of rent, but no abatement will be granted if the defendants fail to establish that there was any deficiency in the areas due to diluvion.

There is, therefore, no substance in the argument that it was not open to the District Judge to consider a case of diluvion if it should be established before him on the facts. The second branch of the argument for the appellants was that on the findings of the District Judge he should not have given the relief which he has given to the defendant. The passage just cited from Dukha Lal Choudhury v. Mt. Manabati AIR 23 1936 Pat. 341 shows that the burden of proof of diluvion lies on the tenant and indeed the words of Section 52 are perfectly clear in referring to "any deficiency proved by measurement to exist in the area." The defendant was bound to prove measurement and the ascertainment by measurement of a deficiency, but he made no attempt at proving, except "by vague and indefinite oral evidence which the District Judge himself does not accept as satisfactory, the amount of the area which had diluviated and the area which remained cultureable in each successive year. He does not even say that he made any measurements himself. In the result it is clear that the District Judge''s finding with regard to the year 1345 is a good finding of fact and for that year the landlord will get a decree in respect of 9 bighas only, but for the preceding years there having been no evidence to show what was the area diluviated in each year the landlord will get a decree for the full amount of rent. The plaintiffs will get proportionate costs throughout.

Manohar Lall, J.

I agree.