Sri Thakur Kapildeo Bhagwan and Another vs Ali Raza and Another

Fazl Ali, J.—These are appeals under the Letters Patent from the decision of Dhavle J., in two second appeals arising out of two suits brought by the plaintiff-appellants to recover rent for the years 1339 to 1341 and first kist of 1342 F. The main point raised by the defendants in the suit was that the landlords had neglected the gilandazi and in consequence of their neglect there was a total failure of crops and so they were not liable to pay any rent. The defendants in support of their defence relied upon an entry in the fard-ab-pashi which is to the effect that the raiyat will be under an obligation to pay the existing rent if the arrangements for irrigation are fully maintained.

The Munsif found on a consideration of the evidence that the landlords had neglected gilandazi till March 1934, but he granted a full decree to the plaintiffs on the ground that the defendants had failad to show that their crops had suffered in any way owing to the neglect of gilandazi. The lower Appellate Court agreed with the view of the Munsif that the landlords had neglected gilandazi, but he held in disagreement with him that by reason of the bad condition of the irrigation system in the village there was failure of crops of the rent claimed lands during the period 1339 to Chait 1341 F.

He accordingly negatived the plaintiffs'' claim for rent relating to the period 1339 to eight annas kist of 1341 F. and dismissed the plaintiffs'' suit for that period. The plaintiffs thereupon preferred a second appeal which was dismissed by Dhavle J. They have now preferred an appeal under the Letters Patent. The points urged on behalf of the appellants before us are three in number: (1) that no presumption of correctness attaches u/s 103-B, Ben. Ten. Act, to the entry in the fard-ab-pashi, which is relied on by the defendants, inasmuch as the settlement officer was not authorized to make such an entry; (2) that this entry can be relied upon only as proof of a custom and the custom being uncertain and indefinite should not be given effect to by this Court; and (3) that there is no evidence whatsoever on the record to prove that the failure in crops alleged by the tenants was due to neglect of gilandazi by the landlords. The first point is fully answered by Section 102, Clause (gg), Sub-section (ii). There can be no doubt that under this provision the settlement officer was authorized to record

the rights and obligations of each tenant and landlord in respect of the repairs and maintenance of appliances for securing a supply of water for the cultivation of land held by each tenant, whether or not such appliances be situated within the boundaries of such land.

Thus, if there was an obligation upon the landlords to maintain the irrigation system in good order by gilandazi, the settlement officer was clearly authorized to make an entry to that effect in the fard-ab-pashi which is a part of the Record of Rights. The learned advocate for the appellants contends that in any event the settlement officer was not authorized to record the fact that the liability of the tenant to pay rent will depend on the maintenance of the irrigation system by the landlord. I am, however, not prepared to accept this contention. The Section refers to the rights and obligations of the tenant as well as those of the landlord. The entry in effect amounts to this, that there was an obligation on the landlord to maintain the irrigation system in good order, and the tenant had a corresponding right to claim remission of rent in case that obligation was not carried out by the landlord. In my judgment, the entry in question must be presumed to be correct u/s 103-B, Ben. Ten. Act, and the Courts below were right in basing their decision upon it as the plaintiffs had failed to adduce any evidence to rebut it.

The second point also appears to me to be without substance. The entry in question is an entry as to one of the incidents of the tenancy, but even if it is taken to be an entry as to a custom prevailing in the village I do not think that the custom can be held to be uncertain or indefinite. The learned advocate for the appellants contends that the custom is uncertain, because if the neglect of the landlords as to gilandazi does not lead to a total failure of crops there is nothing in the fard-ab-pashi to show to what extent and on what basis the remission of the rent is to be allowed. In the present case no such question arises, because it had been found as a fact by the lower Appellate Court that there was a total failure of crops, but even if such a question arose, the Courts would, in my opinion, have found no difficulty in deciding it upon the entry as it stands.

The last point raised on behalf of the appellants is clearly one which might have been raised on their behalf before Dhavle J., but cannot be raised in the present appeal. We are informed by the learned advocate for the appellants that he attempted to raise it before Dhavle J., but he was not allowed to do so, because no certificate had been given in the memorandum of appeal as required by the rules of this Court to the effect that in fact there was no evidence on the record to support the contention of the defendants that there was a total failure of crops in consequence of the neglect of the landlords to maintain the irrigation system in good order.

The learned advocate for the appellants contends that, though he had given no such certificate in the memorandum of second appeal, he is entitled to raise this point now, because such a certificate has been given by him in the memorandum of appeal filed under the Letters Patent. This argument is however clearly fallacious. The appellants can succeed in these appeals only if they can show that the judgment of Dhavle J. in second appeal is not correct, but on the case stated before us it is clear that Dhavle J. was right in refusing to allow the appellants to raise the point before him in the absence of a certificate required by the rules. It is obvious that we cannot entertain in these appeals any point which the appellants were not competent to raise in second appeal. As all the grounds raised on behalf of the appellants have failed, I would dismiss these appeals with costs. There will be only one set of hearing fee in both the appeals.

Harries, C.J.

I agree.