SURPAT SINGH Vs. SHEO PRASAD GUPTA

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiff asked for and obtained a declaration that he was entitled to surrender a patni lease. The tenure in question comprises four villages in the district of Bhagalpur and was created in 1869 by the predecessor in interest of the defendants in favour: of one Mr. ,T. W. Bowers who was an indigo planter and was the owner, of an indigo factory situated in Hulas, one of the villages. It may be presumed that the reason why Mr. Bowers took the lease was that he wished to ensure an adequate supply of indigo plants for his factory, either by growing indigo himself on such bakasht or zerat land as there was in the villages, or by using his influence with the raiyats to induce or compel them to grow indigo for him. The learned Subordinate Judge has attached a good deal of weight to the circumstances that the indigo in dustry began to decline soon after the commencement of the present century and has now largely ceased to exist. Nothing, however, in my opinion, really turns on this. Neither in the patta nor in the kabuliyat is any mention made of the purpose for which the lease was taken, and it is quite impossible to presume that there was any understanding between the lessor and the lessee that the lessee would be entitled to surrender the lease in the event of indigo ceasing to be manufactured at his factory. Moreover, there is no evidence to show, and it is not even suggested, that the plaintiff or his immediate predecessors-in-interest ever grew or manufactured indigo or were the owners of the Inampur Indigo Factory which had belonged to Mr. Bowers. Mr. Bowers, and, after has death, his widow, remained in possession of the tenure until 1896 when it was sold in execution of a decree for money and was purchased by the Eastern Mortgage Company. In 1908, the Eastern Mortgage Company assigned the patni lease to the joint family, of which the plaintiff was then a member, and, in 1926, as a result of a partition, the plaintiff became the patnidar. In 1869 the Kosi river ran past one of the villages, and a stream known as the Chitauni dhar, which took off from the Kosi river, ran through that and also other villages comprised in the tenure. Soon after the plaintiff became the patnidar in 1926, the Kosi changed its course, and, as a result of this, a great volume of water began to flow through the Chitauni dhar which from having been a comparatively narrow stream, became a broad river. A great deal of land went out of cultivation and indeed remained submerged for several years. A certain number of houses in some of the villages were destroyed, and their owners left their homes and migrated elsewhere. The suit was instituted in 1939 and the trial began in 1941, and it was conceded that, before then, the Kosi had again changed its course and had begun to flow in another channel some seven or eight miles to the west of these villages. In 1937, one Shyam Sunder Missir took settlement of 5 bighas of land in one of them and executed a registered kabuli-yat (EX. A). It is, therefore, reasonable to assume that the subsequent change in the course of the river Kosi had occurred prior to 1937. The witnesses for the defendants said that it occurred soon after the earthquake of 1934, and their evidence on this point was corroborated by admissions obtained from two of the witnesses for the plaintiff, Hari Jha (P.W. 4) and Achal Singh (P.W. 7), in cross-examination.

(2.) It is true that it was not until 1940 that any considerable number of raiyats followed the example of Shyam Sunder Missir and came forward to take settlement of bakasht land. The explanation given for this, and I have no doubt myself that it was the correct one was that the raiyats were apprehensive that the river might swing back again. The plaintiff became the sole owner of the tenure in 1926, and he would seem to have had no difficulty in collecting rent in 1333 Fasli. At all events, he appears to have made a profit out of the tenure in that year. It was not until 1334 Fasli and the following years that his rent collections were poor and raiyats began to surrender or abandon their holdings. Considerable areas of land in each of the villages would seem to have been under water more or less continuously from 1334 to 1342 or 1343 Fasli, and although the river would seem to have receded in the latter year, a great deal of land was, at the time of the trial, still covered with sand and with kas and patet jungle. The process of reclamation had, no doubt, begun, but as yet had not made any very considerable progress. On the other hand, it is quite clear that no permanent damage had been done to the land and that raiyats, not merely were prepared to come forward and take settlement, but were also prepared to pay a salami and rent at rates considerably higher than were paid by raiyats having a right of occupancy in the land prior to its inundation. The plaintiff would not appear haye granted any remission of rent to those raiyats whose holdings diluviated or who were unable to meet their obligations. A very large number of rent suits were instituted, and, in execution of the decrees, which he obtained, the plaintiff purchased the holdings.

(3.) The plaintiff also took steps to obtain possession through the revenue Courts of any holdings which were abandoned, and induced a considerable number of raiyats either to surrender or to sell their holdings to him. The total area of land comprised in the tenure, as shown in the record of rights, was 4603 bighas, and there is documentary evidence on the record to show that the plaintiff has come into khas possession of no less than 1475 bighas. A number of kabuliyats (Ex. A series) were produced by the defendants, showing that, in 19,40, the plaintiff settled more than 100 bighas of this land. As I have, just said, the executants of these kabuliyats, not merely paid him a salami, but undertook to pay rent at ft considerably higher rate than had been paid for this land previously. So far, therefore, as this land is concerned, the plaintiff must either have already recouped any loss which he has sustained or will recoup that loss very shortly and will then make a very much larger profit out of it than he had done prior to 1834 Fasli. -Lochan Mandar (P.W. 9) said that men from Saran had taken settlement of land in Haripur, and Goghan Mian (P.W. ll) said that new tenants had settled in both Haripur and Hulas. Janak Bihari Lal (D. W. 2), a law clerk of the defendants, said that more land would have been settled but for the opposition of the raiyats who wished to take settlement of the land themselves and were opposed to its being settled with strangers, who, presumably, were prepared to pay a higher rate, of rent than they were. In 1938 the Bihar Seduction of Arrears of Rent and Restoration of Bakasht Lands Act was enacted, and, prior to that, Section 112A had been inserted in the Bihar Tenancy Act for the purpose of enabling raiyats having a right of occupancy in their land to apply, on one or other of a number of grounds, for the reduction of their rents. As a result of the former enactment, the plaintiff may now find it a matter of difficulty to settle any considerable portion of the 1475 bighas of land, which have come into his khas possession at high rates of rent. As a result of the latter enactment, the rent payable to him by a number of occupancy raiyats will be less than the rent which "they had to pay prior to the inundation. In other words, the plaintiff will be unable to carry to its logical conclusion the policy which he seems to have systematically pursued of attempting to turn to his own advantage the misfortunes of his tenantry. But that can clearly be no ground for his avoiding the lease. It is said that, from 1334 to 1345 Fasli, the income which the plaintiff derived from the tenure was very much less than the expenses which he had to incur in its management. That, I have no doubt, is correct. At the same time, I have also no doubt that one reason why the expenses so greatly exceeded the income was that the plaintiff entered into a great deal of litigation with the object of evicting many of his tenants. A patwari of the plaintiff said that, in 1347 Fasli, the amount of his commission was RS. 97-18-0 which shows that a sum of Rs. 4848 must have been collected as rent.