ARIPUDDIN MONDAL Vs. TASER MONDAL

JUDGEMENT

(1.) This appeal by the Plaintiff arises out of a suit for khas possession on declaration of title in respect of cadastral survey plot No. 322 of kliatiydn No. 94 of mauza Ramchandrapur in the district of Murshidabad. It is admitted that the lands recorded in cadastral survey plot No. 322 together with the lands recorded in cadastral survey plots Nos. 318, 720 and 89 and some other lands formed the subject-matter of a tenancy held by the predecessor-in-interest of Defendants Nos. 2 and 4 under the Midnapore Zemindary Company, Limited. The lands of the tenancy being on the bank of a river are subject to alluvion and diluvion. In the year 1937, corresponding to 1344 B.S., the Midnapore Zemindary Company, Limited, instituted Rent Suit No. 1498 of 1937 for recovery of arrears of rent at the rate of Rs. 17-5 which was the rent of the entire tenancy against Defendants Nos. 3 and 4. At that time only the lands of cadastral survey plots Nos. 318, 720 and 89 were in existence but the lands of Cadastral survey plot No. 332 and other lands were still under water. The tenants claimed abatement of rent which was allowed by the court and the rent was reduced from Rs. 17-5 to Rs. 4-11 by a judgment, dated December 20, 1937. The land of cadastral survey plot No. 322 alluviated in Ashwin, 1349 B.S., and the superior landlords were in khas possession through bargdddrs in 1350 and 1351 B.S. The Plaintiff took settlement from the landlord at a rent of Rs. 2-7 in Pons, 1351 B.S., but was dispossessed by the Defendants Nos. 1 and 2 on the strength of a purchase from Defendants Nos. 3 and 4. All these facts are admitted before us and they have been concurrently found by both the courts below.

(2.) The trial court decreed the suit upon the view that the title of Defendants Nos. 3 and 4 to the disputed land had been extinguished under Section 86A of the Bengal Tenancy Act as it stood in 1937 on account of the fact that the said Defendants had obtained abatement of rent in respect of it and it further found that the title of the said Defendants had also been extinguished by dispossession by the landlord for more than two years under Schedule III, Article III, of the Bengal Tenancy Act. The lower appellate court has reversed the decision of the trial court on both the points and has held that Section 86A, as it stands after the amendment of 1938, applies to the case and that the possession of the land by the landlord after its re-appearance amounted at best to a discontinuance of the possession of Defendants Nos. 3 and 4 and not to their dispossession within the meaning of Schedule. III, Article III, of the Bengal Tenancy Act. Upon this view, the court of appeal below has dismissed the suit. The Plaintiff has brought this second appeal against that decision.

(3.) The first question that arises for consideration in this appeal is whether by the acceptance of abatement of rent in the year 1937 under the decree in Rent Suit No. 1498 of that year the tenancy right of Defendant's Nos. 3 and 4 can be said to have been extinguished. In order to decide this question we have to notice the changes in law introduced by the successive amendments of the Bengal Tenancy Act in the years 1928 and 1938. Prior to the introduction of Section 86A by the Bengal Tenancy Amendment Act of 1928, the law was that acceptance of remission or abatement of rent in respect of lands washed away by the river simpliciter does not constitute abandonment of the land without some other evidence of the intention to abandon and it does not take away the tenant's right to the land when it is reformed in situ. This was held by the Privy Council in the case of Arun Chandra Singh v. Kamini Kumar Bardhan, 1913 41 IndApp 32. Under Section 86A which was introduced by the Bengal Tenancy Amendment Act of 1928, if the whole or any part of the lands of a holding is lost by diluvion and if the tenant obtains an exemption or abatement of rent on that account, the tenant shall be deemed to have Surrendered his rights in such lands and his tenancy and rights therein shall be extinguished unless there is a contract to the contrary made by a registered instrument. This was the law from February 21, 1929, when the Bengal Tenancy Amendment Act (Ben. IV of 1928) came into operation, up to August 18, 1938, when the Bengal Tenancy Amendment Act (Ben. VI of 1938) came into force. The result of the introduction of Section 86A by Bengal Act IV of 1928 was to take away the effect of the Privy Council decision in Arun Chandra's case and to lay down that by merely accepting exemption or abatement of rent on account of diluvion the tenant could be said to have surrendered his interest in the tenancy and his tenancy would be extinguished in whole or in part in the absence of a contract to the contrary made by registered instrument. By the amendment of 1938, by Bengal Act VI of 1938, Section 86A was remodeled and it was provided that if the land of the tenancy was wholly or partially lost by diluvion the tenant would be entitled to total exemption or proportionate abatement but the interest of the tenant shall subsist in such, lands or portions thereof during the period of loss by diluvion not exceeding twenty years and the tenant shall have right to immediate possession on the re-appearance of such land or portion thereof within twenty years of the loss by diluvion.