RAM BRICHH LAL Vs. MAHOMED SAHEB

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for recovery of arrears of rent of a raiyati holding with a prayer for enhancement of the rent under Section 30(b), Ben. Ten. Act. The present appeal is confined only to the question of enhancement of the rent. The enhancement was resisted by the appellants on the ground that the plaintiff landlord had failed to maintain certain irrigation works of the village which he was bound to do according to the Record of Rights which clearly indicated that the rent recorded was payable only if the works were maintained. This plea was overruled by both the Courts below and they allowed enhancement at the rate of four annas per rupee. The same plea has once more been repeated in the second appeal.

(2.) It appears that after the completion of the settlement operations the plaintiff landlord sought enhancement of rent under 8. 30(a) and 30(b), Ben. Ten. Act, while the tenant defendants claimed abatement of rent under Section 52(b) Ben. Ten. Act. A compromise was effected and the tenants agreed to pay enhanced rent at the rate of one anna per rupee and the landlord undertook to maintain the irrigation facilities of the village which existed before the year 1314 Fasli It is on this agreement and on the entry in the Record of Rights that the tenants opposed the enhancement.

(3.) Much stress has been laid on the observation of the learned District Judge in appeal that non-maintenance of the works of irrigation was no ground for refusing enhancement of rent and that in such a case Section 35, Ben. Ten. Act, had no application. Perhaps the learned District Judge is not correct. He says that there are several cases of this Court to that effect. My attention was drawn to only one of them, namely Sayedatulnissa V/s. Amrit Mahto AIR 1927 Pat 144. There also there is a single passage in the judgment of Ross, J., to the effect that non- maintenance of works of irrigation is by itself no ground for application of the principle of Section 35, Ben. Ten. Act. There are however other decisions of this Court which have laid down a contrary view. I need not however pursue this matter, as on the finding of facts no question of law arises. Both the Courts below have found as a matter of fact that the irrigation works have been efficiently maintained.