SITAL PRASAD Vs. SURENDRA NATH CHATTERJI

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.