Someshwar Nath Singh and Others vs Raghuband Lal and Others

Fazl Ali, J.—These appeals arise out of two suits for rent, these being Suit No. 28 of 1932 in which the plaintiffs (Raghubans Lal and others) claim a twelve-annas rent from 1336 to 1339 Fasli and Suit No. 1101 of 1934 where the claim is by another co-sharer landlord for a six-annas share in the rent for 1340 and 1341 Fasli in respect of certain lands in village Ghangaila Daryapur. It appears that in mauza. Ghangaila Daryapur one Earn Khelawan Singh had a four annas dar-mukarrari interest and he also held 145''06 acres of land at an annual rental of Rs. 1377-4-9. This land was described in the Record of Rights as his tenure and part of it was in, his khas possession and recorded as bakasht and about 100 acres were in possession of tenants who paid either nakdi or bhaoli rent. Some time about 1926 Earn Khelawan sold the entire land to Someshwar Nath Singh and other members of his family who are the contesting defendants in the two suits. Earn Khelawan has also parted with his four-annas dar. mukarrari interest, but it is not clear to whom this interest has now passed. In each of the suits the plaintiffs are either mukarraridars or dar-mukarraridars of a six. annas interest only and the holders of the remaining interest have been impleaded as pro forma defendants.

The main defence in both the suits is that the plaintiffs are not entitled to realize the full rent inasmuch as owing to their omission to maintain the irrigation system in good order the lands of the village have greatly deteriorated in productive capacity. In Suit No. 28 of 1932 the contesting defendants have taken a further plea that the suit is not properly constituted, inasmuch as the rent and the area of the lands have not been correctly stated and because the plaintiffs have claimed a twelve-annas share in the total rent, although they are dar-mukarraridars of only a six-annas share in the village. It appears that there are two ahars in village Ghangaila Daryapur which are known as Purwari and Dangra ahars.

The defendants'' case is that by means of a pyne which connects these ahars with a small river named Sinane, water used to be brought and stored in these two ahars and then distributed to the lands of various tenants including the defendants for the purpose of irrigation. According to the fard-e-ab-pashi (Ex. E) filed in Suit No. 28 of 1932, the two ahars "are to be repaired by the mukarraridars and dar-mukarraridars of the village" and a Comissioner who was deputed to make a local investigation has reported that these two ahars have not been repaired for a considerable time with the result that no water can now accumulate in Dangra ahar and the entire water which comes into it is drained off by means of a nala recently formed.

As the plaintiffs have not assailed this report, it has been accepted by the Courts below in both the suits, but the learned Munsif in Suit No, 1101 and the learned Subordinate Judge in Suit No. 28 have expressed the view that the contesting defendants themselves were partly responsible for the alleged dislocation of the irrigation arrangement. The learned Munsif deals with the matter as follows:

Under this khewat, there is a bakasht khata of the tenure-holder, and other raiyati khatas, some bhaoli and some nakdi. With regard to the bhaoli khatas, the entry in the khatian (Ex. 1) is that the darmiani khewatdar or in other words Earn Khelawan Singh and after him, his vendees, that is defendants 1 to 4, are to maintain the irrigation arrangements in proper''working order. The fard-ab-pashi Ex. B also shows that the obligation of making gilandazi and other repair works of the ahars and pyne in the village is on the mukarrari. dars and dar-mukarraridars or in other words on the superior maliks not excluding the intermediate tenure-holders.

Initially therefore this obligation was on defendants 1 to 4 as well and they cannot shift the entire responsibility on the mukarraridars and dar-mukarraridars only. It was therefore a part of these defendants'' duty to construct and repair the irrigation works at their cost and then to come in for contribution against the other maliks if they defaulted in paying their quota of the cost, and this affords no basis in the present case, for claiming suspension or reduction of rent payable for the tenure.

The learned Subordinate Judge in Suit No. 28 came to a similar conclusion but by a different process of reasoning as will appear from the following extract from his judgment:

The entries in the khatian show that in respect of the bhaoli holdings the landlords are liable to maintain the irrigation system. There is no such mention in respect of the nakdi holdings of the village. There is a very small area of bhaoli lands in this village as appears from the khatian. It can therefore be inferred that it was the duty of the tenants to keep the irrigation system of the village in proper order and I think it was for the fault of the raiyats that the lands do not yield sufficient produces.

The lower Appellate Court however has in Suit No. 1101 of 1934 held that if it could be established that the lands have deteriorated, the defendants would be entitled to some relief and has remanded the case for the purpose of ascertaining whether there has been a deterioration of the land''s productivity owing to the neglect of the irrigation system by the landlord and thereafter determine the question of the amount of rent to be paid by the defendants.

The result is that there are at present two conflicting decrees in the two suits and in order to settle this conflict in the decrees, the two appeals have been heard "together with the consent of the parties. As I have already stated the fard-e-ab-pashi shows that it was the duty of the landlords to repair the Dangra Ahar and Purwari Ahar (plots Nos. 315 and 1034) and there can be no difficulty in construing this document. But there is a note in the khatian against the lands which were held on bhaoli rent under Earn Khelawan, the predecessor-in-interest of the contesting defendants to the effect that "the costs of irrigation and earth-work were met by the tenure-holder," that is to say Earn Khelawan. Whether, by the cost of irrigation and earth-work referred to in the note was meant the cost of repairing any particular pynes or water, passages outside Earn Khelawan''s tenure which brought water to these bhaoli lands or it had reference to any particular arrangements within the tenure itself was a matter which could be elucidated by evidence as to how these lands used to be irrigated before, but unfortunately neither party has offered any evidence on the point. Indeed one of the main difficulties in deciding the principal issue raised on behalf of the defendants is that evidence which ought to have been adduced by them as to certain material facts has not been adduced.

In the first place it is difficult to decide on the materials on the record what is the status of the defendants with reference to the lands in suit. These lands have been described as kasht in the plaint of both the suits and in the plaint of one of the suits the defendants are stated to be kashtkars. The lower Appellate Court in Suit No. 1101 of 1934 has accordingly held that the defendants must be raiyats and cannot be tenure-holders, but it appears to me that his conclusion cannot be supported in law.

It is true that the terms kasht and kashtkar are generally used with reference to raiyats; but they are after all mere general expressions implying that the land is in direct cultivation of the person described as kashtkar and do not necessarily suggest that such a person cannot be a tenure-holder. The inference which is suggested by the entry in the Record of Rights is that the defendants are tenure-holders and it is strengthened by the fact that the total area in possession of the defendants is more than 100 bighas. This inference could have been rebutted only by some clear evidence as to the purpose for which the tenancy was originally acquired, but no such evidence has been offered on behalf of the defendants.

A further complication is introduced into the case by the fact that Earn Khelawan himself was a darmukarraridar of a four annas interest in the village and in Suit No. 28 of 1932 Someshwar Nath Singh, defendant 1 has made certain statements which show that the obligation to maintain the irrigation arrangements lay not only on the plaintiffs and other mukarraridars of the village but on him also. These statements run as follows:

(1) We defendants are Mukarraridars;(2) Maliks including myself used to maintain the irrigation arrangements till 1321; (3) We the defendants remained in possession of the four annas takhta in mauza Ghangaila till the partition was set aside. We did not repair the pynes, etc., as they are all joint. I did not repair and did not sue for recovery of the amount payable by the other maliks.

In view of these statements it is urged on behalf of the plaintiffs that the lands which are in possession of the defendants must have formed part of the darmukarrari interest which was once held by Earn Khelawan, but there is no evidence as to how and when Earn Khelawan acquired these lands. It was urged by the learned advocate for the defendants that the statements in question were either made by defendant 1 under some misapprehension or they have not been correctly recorded by the Court below. The statements however are there and at least so far as the present litigation is concerned, they cannot be altogether discarded.

The next difficulty in the way of the defendants is that they have not clearly stated in their pleading upon what basis they claim reduction of rent. It was urged before us that the defendants are entitled to a reduction of rent u/s 38, Ben. Ten. Act, but Section 38 applies only to an occupancy raiyat and the defendants cannot invoke it to their aid, unless it is clearly established by them that they are occupancy tenants. Even however if the defendants are treated as occupancy raiyats, it is difficult to hold that Section 38 has any application to the facts of the present case. u/s 38 abatement of rent may be claimed when the soil of the holding has without the fault of the raiyat become permanently deteriorated by a deposit of sand or other specific causes, sudden or gradual. The deterioration which is contemplated by this Section is a deterioration of the soil which must be more or less of a permanent character. Where however the productive capacity of the land depends on irrigation, the mere fact that for want of irrigation the land does not yield as much produce as it did before, will not amount to a permanent deterioration of the soil. At the same time it must be recognized that where it is shown that as a result of some local custom be by contract the landlords are not entitled to receive the full rent unless they maintain the irrigation system in good order, suitable relief can be given to a tenant even in a suit for rent.

For this purpose however the case whether it is based on custom or contract must be clearly made out in the pleadings and supported by proper evidence. A tenant may also in certain circumstances make a counter-claim for damages when he has sustained any loss owing to the omission on the part of the landlord to carry out his obligation to him or the tenants in general. But in the suits before us the defendants have neither properly pleaded matters which should have been pleaded nor have they proved facts which would have enabled this Court to give them necessary relief.

As I have already stated, a commissioner was deputed in Suit No. 28 of 1932 to make a local investigation but his report is confined almost exclusively to the irrigation arrangements of the village and though he has somewhat casually referred to some of the plots in the possession of the defendants, yet the fact remains that he made no detailed investigation as to how the defendants'' lands are irrigated and what was their productive capacity when the irrigation arrangements were in normal condition and how and to what extent it has been affected since.

Defendant 1 has stated somewhat vaguely in his evidence that the productive capacity of the land in his possession has been reduced to three or four annas in the rupee, but this statement is not supported by the statement of any other tenants of the village whose lands must have been likewise affected and is opposed to the statement of the plaintiffs'' patwari which is to the effect that the productive capacity of the lands have not been affected in the least. It is certainly remarkable that the plea which is raised now by the defendants was not pressed by them when they were sued for the rents of 1332 to 1335. As the onus to prove the special plea raised by the defendants was clearly on them and they have failed to discharge the onus, if appears to me that the plaintiffs'' suit should be decreed.

To order a remand at this stage will amount to ordering a new trial requiring fresh pleadings and fresh evidence which should have been adduced by the defendants in the original trial. Besides by the decree in the present suit the defendants will not be debarred from claiming in any suit which may be brought against them in future the relief which they have claimed in these suits and I have no doubt that appropriate reliefs will be granted to them if they adduce sufficient and reliable evidence on the points already indicated by me.

In order to understand the further plea which has been raised by the defendants 1h Suit No. 28 it will be necessary to state certain facts. Mauza Ghangaila appertains to Mahal Belkhara, tauzi No. 299, which appears to have been the subject-matter of a partition suit instituted in 1917. On 18th April 1918, a preliminary decree was passed in that, suit and a final decree was passed on 22nd December 1922. Under this decree the plaintiffs in Suit No. 28 of 1932 got a patti of 12 annas in village Ghangaila and to this patti the Court allotted about 112 acres out of the total area of 145 odd acres in possession of the defendants.

As however the rents of some of the villages under partition were being commuted by the Revenue Courts at the date of the final decree, it was provided in the decree that if the total nakdi rent of any of the villages after commutation was found to be less than the rent stated in the jamabandi on the basis of which the partition had been made, the party prejudiced by the commutation would be aft liberty to re-open the partition. In accordance with these provisions one of the co. sharers wanted to re-open the matter in the year 1927 and he obtained an order from the High Court on 14th November 1929 as a result of which the partition was set aside and the status quo ante restored.

The present suit was instituted by the plaintiffs on 19th September 1932 to recover rent and cess from 1336 to 1339 up to the end of which the co-sharers of mauza Ghangaila had been in separate possession of the patti allotted to them by the partition. Their case was that they were entitled to a 12 anuas share in the rent of these years in view of the partition decree and in their plaint the area of the lands in respect of which rent was claimed was stated to be not 145 acres but 112 acres odd.

On the other hand the contention which was put forward on behalf of the defendants was (1) that the plaintiffs'' suit was liable to be dismissed because the area and the rental of the lands in possession of the defendants had not been stated correctly as required by Section 148, Ben. Ten. Act, and (2) that in any event the plaintiffs were not entitled to claim more ''than six annas share in the rental because the present suit was brought, after the partition had been set aside by the High Court and they had got possession of their original share in the mauza by means of dakhal-dehani. The learned Subordinate Judge has overruled these contentions and decreed the plaintiffs'' claim in full.

Now it appears that the plaintiffs have since the suit parted with their interest in the mauza and therefore any decree which is to be passed in the suit will have under the law the force of a money decree only. This being so, the plea of the defendants that the plaintiffs'' suit must fail, because the area and the rental have not been correctly stated by the plaintiffs cannot be sustained. There is no reason why the plaintiffs should not be awarded a decree in respect of such amount as may be found to be due from the defendants. The defendants'' plea of payment has not been pressed either in this Court or in the Court below and having regard to the special facts of the case, I think that the plain, tiffs'' claim has been rightly decreed in full by the trial Court. The plaintiffs were in possession of 12 annas share during the years in suit and it has been established by them that after the partition was set aside they had to pay compensation to the Solano estate (also a six annas co-sharer) for being in possession of its share in the mauza.

It is not the case of the defendants that they have paid any rent to the Solano estate during this period and the learned advocate who appears in this Court for the Solano estate admits that having realized compensation from the plaintiffs, the estate is not entitled to claim rent separately from the defendants in respect of the period in suit. In my opinion therefore the plaintiffs are entitled to 12 annas share in the rent for the period in suit. I would therefore decree the plaintiffs'' claim for rent and the cess in both the suits, but inasmuch as it has been established beyond doubt that the plaintiffs were under an obligation to repair at least the two ahars in the village and they have deliberately neglected to carry out their obligation, I would not allow any damages or interest pendente lite to the plaintiffs and direct that the parties should bear their oosts throughout, the cost of the commission to be borne entirely by the plaintiffs in Suit No. 28 of 1934. The decretal amount shall however carry interest at 6 per cent, from this date till the date of realization. Subject to these modifications the decree of the trial Courts in both the suits must be affirmed and the decree of the lower Appellate Court in Suit No. 1101 of 1934 set aside. The objection of the defendants to the amount of cess claimed by the plaintiffs not being substantiated is overruled.

Courtney-Terrell, C.J.

I agree.