DEONANDAN PRASAD SINGH Vs. PARDIP SINGH

JUDGEMENT

(1.) These appeals are from appellate decrees dated 23 February 1943, of the Subordinate Judge, first Court, Patna, which modified the decrees dated 13th March 1942, of the Munsif of Barh, in suits for recovery of arrear rents of agricultural holdings. The suit holdings are within mouza Dhouria Badal Singh, touzi No. 9095 of which the plaintiffs are proprietors of 14 annas 12 1/2 dams share having separate collections from the pro forma defendants who are proprietors of the remaining share. The defendants are raiyats of the holdings at rate of rent fixed in perpetuity. The period of claim for arrear rent varies in different suits, it being 1345 to 1348, or 1346 to 1348. The defendants contend that the landlords neglected to maintain the irrigation arrangements of the mouza in proper order and this had affected the produce of the holdings in question in the years in suit. They pleaded for abatement of rent by 50 per cent, on that ground. The original Court found that the irrigation arrangements were in good order and it has not been proved that there was any appreciable deficiency in the productive capacity of the lands on account of any neglect of gilandazi. On this finding and also for the reason that the rents of the holding being fixed in perpetuity that Court held that the defendants are not entitled to any remission of rent on the ground alleged. Accordingly the Munsif granted decrees to the plaintiffs according to their claim. The learned Subordinate Judge who heard the appeals found that gilandazi work was not fully done during the years in suit and payment of rent was subject to the condition of maintenance of the irrigation arrangements in proper order. He held that the defendants were entitled to an abatement of rent by 25 per cent, for the years in suit. The plaintiffs have preferred these appeals.

(2.) The finding of the appellate Court on the point of maintenance of irrigation arrangements in proper order is challenged on behalf of the appellants. It appears that a commissioner was appointed to inspect the irrigation arrangements of the mouza. The commissioner was required by the writ to inspect eight plots. He however inspected four of them only. Of these four he found one Alang in a dilapidated and neglected condition for some years and minor breaches in the other three. The plaintiff's Patwari stated that irrigation arrangements have been in the same condition for the last 20 years, while the defendants witnesses stated that it has been so for the last 10 or 15 years. These materials seemed to the Subordinate Judge to justify the finding arrived at by him which being a finding of fact cannot be re-opened in second appeal. The principal question for determination in these appeals is whether the defendants holding the lands in suit at a rate, or rate of rent fixed in perpetuity are entitled to any remission of rent on account of the landlord's failure to maintain the irrigation arrangements in proper order. It has been urged for the appellants that the rent of the holdings being fixed in perpetuity remission of rent, in the absence of any term to such effect in the contract which created the tenancies is not permissible in law, and that Clause (c) of Section 112A(1), Ben. Ten. Act, which provides for remission of rent in such circumstance applies only to occupancy holdings and, therefore, the defendants cannot claim benefit of the said provision. In support of this contention reference is made to the decision of a Special Bench of this Court in Dukha Lal Chaudhry v. Mt. Manabati A.I.R. 1936 Pat. 341. In that case it was held that: Where the rights and the liabilities of the parties are regulated by contract, the terms of which could not be said to have been unfair at the date when the contract was entered into, the principle of natural justice cannot be invoked to relieve one of the parties of some hardship, which might have been provided against in the contract but which the parties have omitted to provide for. Therefore, there is no justification for extending the principles underlying Section 38, Ben. Ten. Act, 1885, to a tenant holding under Istemrari mokarrari lease.

(3.) The learned Subordinate Judge in allowing partial remission of rent for the years in suit appears to have followed the decision of a Division Bench of this Court in Sir Ganesh Dutta Singh V/s. Somar Mahto in Second Appeal No. 488 of 1941. The learned advocate for the appellants submitted that the decision of the Division Bench is in conflict with the decision of the Special Bench which ought to prevail. That case was also for recovery of arrear of rent by these very appellants against certain tenants of the same mouza. The rent of the holdings in the suits giving rise to those appeals was also fixed in perpetuity. The learned Subordinate Judge who heard those appeals construed the terms embodied in the kabuliyat with reference to the irrigation record of rights (Fard Abpashi) and came to the conclusion that there was an implied term in the contract of the tenancy of those tenants that the realisation of rent is subject to the maintenance of the irrigation works by the landlord and as that had not been done, the tenants were held entitled to abatement of rent. Their Lordships of the Division Bench accepting the finding of the Court below held the tenants entitled to the remission of rent as granted by the Subordinate Judge.