DHANUKHDHARI SINGH Vs. MTBIBI AMMA

JUDGEMENT

(1.) These appeals arise out of a suit for recovery of arrears of rent. The Record of Rights contained an entry to the effect that the existing rents were payable only so long as the existing facilities for irrigation were maintained by the landlord; and the defendant pleaded that the landlord had totally neglected the irrigation work of the village with the result that his land had become completely unproductive. The learned Subordinate Judge accepted to a certain extent the evidence of the defendant, finding that the landlord had been neglecting the work of irrigation, but he found also that the bhit land for which cash rent had been payable from a very early period did not require irrigation. He therefore gave a decree for the amount of rent which had been payable for that bhit land; while he disallowed the claim for rent payable for other land.

(2.) For this latter description of the land he held that the defendant was entitled to withhold rent and so dismissed that part of the landlord's claim. Both parties appeal from the decision of the learned Subordinate Judge. The learned advocate for the appellant argues that the learned Subordinate Judge had not sufficient material before him to discriminate between the bhit land which form the ancient holding and the other land; and he contends that on his finding the learned Subordinate Judge ought to have dismissed the suit completely. On behalf of the landlord appellants the same arguments is taken, but the inference which would be drawn is that the learned Subordinate Judge ought not to have allowed any abatement of rent at all. The learned advocate also suggests that although the Record of Rights may say that the existing rents are payable only so long as the facilities for irrigation are maintained in proper order, the onus is upon the defendant to prove a specific contract to that effect between himself and his landlord.

(3.) He cites the decision in Pratap Narain Singh V/s. Nathan Singh AIR 1924 Pat 605 as authority for his contention that in the absence of proof of the terms of the original tenancy, or of a custom by which the landlord must provide irrigation facilities the tenant is not entitled to suspension of rent in respect of a nakdi holding on the ground that the landlord has failed to .... maintain the water channels providing facilities for irrigation. In that case the Khatians showed that the landlord was responsible for maintaining the irrigation works; but it appears that this entry had reference only to bhaoli holdings and not to land held on cash rent.