MEDINI KUMAR Vs. PCMALLICK

JUDGEMENT

(1.) This second appeal, which is by the defendant, arises out of a suit to recover arrears of rent for the period from 1848 to 1351 Fs. The defendant is a tenure holder, his tenure being described in the record of rights as "Istimarari lekin mukarrari nahin." The rent there recorded as legally payable is Rs. 8-4-8 annually. Admittedly, however, part of the land comprised in the tenure has diluviated and part is covered with sand, and in the years immediately preceding 1348 Fasli, the landlord accepted rent at the rate of 5 annas a bigha. Apparently, this was the rent which under some kind of amicable arrangement between their landlord and themselves occupancy raiyats in the village paid when their land diluviated or was rendered sterile by deposits of sand. In 1348 Fasli and the ensuing years the plaintiff, however, demanded from the defendant the rent legally payable for the tenure on the ground that, in consequence of the amendments which had been made in the Bihar Tenancy Act, tenure holders are no longer entitled to claim an abatement or apportionment of rent.

(2.) The learned Subordinate Judge is, of course, correct in saying that there is no specific provision in the Bihar Tenancy Act under which a tenure holder can claim an abatement. In England, however, it has for a very long time been recognised that, as rent is a profit which issues out of the land, then, if a tenant is deprived of a portion of his land by an act of God, such as the incursion of the sea, he is entitled to an apportionment by operation of law. This principle has been recognised and adopted by the Courts in this country, and, among others, by this High Court, see for instance, Sukhraj Rai V/s. Ganga Dayal A.I.R. 1922 Pat. 169.

(3.) It is, however, also well established that when a tenant claims an abatement of rent on the ground that a portion of the land comprised in his holding or tenure has diluviated the onus is on him to show how much land has been lost in this way. The latest authority on the point which was cited at the bar is Arunchandra Singh V/s. Shamsul Huq A.I.R. 1931 Cal. 537 of the report of the decision of the Full Bench Rankin C.J. said: If a tenant after diluvion wants to get rid of his landlord's prima facie right to the full rent, he may bring his suit for abatement of rent and upon proper proof of the extent of the diluvion his liability will be reduced. If he does not choose this course, then while he can still plead and prove the fact and the extent of the diluvion as a partial defence to a suit for the full rent, he can make no grievance of the fact that the landlord claims it from him. At the one time or at the other it is for the tenant to show what he has lost and that he has been partially discharged from the liability which he assumed as tenant.