SRI THAKUR KAPILDEO BHAGWAN Vs. ALI RAZA

JUDGEMENT

(1.) These are appeals under the Letters Patent from the decision of Dhavle J., in two second appeals arising out of two suits brought by the plaintiff-appellants to recover rent for the years 1339 to 1341 and first kist of 1342 F. The main point raised by the defendants in the suit was that the landlords had neglected the gilandazi and in consequence of their neglect there was a total failure of crops and so they were not liable to pay any rent. The defendants in support of their defence relied upon an entry in the fard-ab-pashi which is to the effect that the raiyat will be under an obligation to pay the existing rent if the arrangements for irrigation are fully maintained.

(2.) The Munsif found on a consideration of the evidence that the landlords had neglected gilandazi till March 1934, but he granted a full decree to the plaintiffs on the ground that the defendants had failad to show that their crops had suffered in any way owing to the neglect of gilandazi. The lower Appellate Court agreed with the view of the Munsif that the landlords had neglected gilandazi, but he held in disagreement with him that by reason of the bad condition of the irrigation system in the village there was failure of crops of the rent claimed lands during the period 1339 to Chait 1341 F.

(3.) He accordingly negatived the plaintiffs claim for rent relating to the period 1339 to eight annas kist of 1341 F. and dismissed the plaintiffs suit for that period. The plaintiffs thereupon preferred a second appeal which was dismissed by Dhavle J. They have now preferred an appeal under the Letters Patent. The points urged on behalf of the appellants before us are three in number: (1) that no presumption of correctness attaches under Section 103-B, Ben. Ten. Act, to the entry in the fard-ab-pashi, which is relied on by the defendants, inasmuch as the settlement officer was not authorized to make such an entry; (2) that this entry can be relied upon only as proof of a custom and the custom being uncertain and indefinite should not be given effect to by this Court; and (3) that there is no evidence whatsoever on the record to prove that the failure in crops alleged by the tenants was due to neglect of gilandazi by the landlords. The first point is fully answered by Section 102, Clause (gg), Sub-section (ii). There can be no doubt that under this provision the settlement officer was authorized to record the rights and obligations of each tenant and landlord in respect of the repairs and maintenance of appliances for securing a supply of water for the cultivation of land held by each tenant, whether or not such appliances be situated within the boundaries of such land.