LAL BEHARI SINGH Vs. MAHABIR MAHTON

JUDGEMENT

(1.) These are five analogous appeals together with a cross-appeal in each case. The appellant here is the plaintiff who claims to be sixteen annas landlord of the holding in suit. The claim was for rent of 1338 in four of the cases and of 1337 and 1338 in one. There was also a claim for enhancement. The first Court decreed the rents claimed which are cash rents but refused enhancement. A plea that had been taken was that as the landlord had neglected to maintain irrigation facilities for the lands in suit, the lands had deteriorated, could not produce such crops as were formerly produced and therefore the full rent should not be decreed much less any enhancement be allowed. The first Court found that in the Record of Rights it was entered that the full cash rents recorded were payable so long as the landlord maintained irrigation arrangements and that such irrigation arrangement had not been maintained and kept in order. On this ground the Munsif refused enhancement, but did not give the defendants any abatement of the cash rental.

(2.) On appeal the lower appellate Court affirmed the finding that Gilandazi had been completely neglected by the malik and held that the lands in suit had so deteriorated as to be in their present condition capable of producing only one-third of the outturn on which the existing cash rents were presumably based. Accordingly he reduced the amounts of the rent decree to one-third in each case of the cash rents claimed. This is the subject of the appeals of the plaintiff. It is contended that the plea of suspension of rent was not available to the defendants on the pleadings, still less should the abatement of rent to one-third have been allowed. That the evidence of the plaintiff regarding maintenance of Gilandazi had not been considered by the lower appellate Court and it was further contended that this Court might remand the suits for further findings after considering evidence regarding rent suits relating to subsequent years and the results of the deputation of a Commissioner in subsequent years to examine and report on the condition of the land. I can find no substance in the contention that the plea for suspension or abatement of rent was not available to the defendants. It is well settled that the principle of Section 38, Ben. Ten. Act, applies not only to suits instituted by a tenant for the abatement of rent but to a plea taken by a tenant in a suit in which he is a defendant.

(3.) The decision in Dhanukdhari Singh V/s. Mt. Bibi Amma 1933 Pat 441, relied on by the lower Court, is in point. The tenant can certainly raise such a plea, and what he has to show is permanent deterioration leading to failure of outturn. As regards the alleged failure of the lower appellate Court to consider the plaintiff's evidence regarding the Gilandazi done by him, that evidence consisted of the uncorroborated statement of the plaintiff himself unsupported by papers, and the lower appellate Court may be considered to have adopted the reasoning of the Munsif who demonstrated adequately that the evidence of the plaintiff alone could not be relied on for this matter. As regards the prayer for admitting additional evidence Mr. Khurshed Husnain said that he asked for this under Order 41, Rule 27(b); but I am unable to find that this falls within that rule. The argument was that as the lands in suit were found to produce good crops in subsequent years, it cannot be held that there was permanent deterioration. Therefore the conditions for abatement of rent in the years in suit are not fulfilled. It appears, however, that between the date of the years in suit and the subsequent date at which the lands were found to be bearing good crops, there had been action taken for restoring the means of irrigation. That being so the fact that after the restoration of the means of irrigation the lands could bear good crops will not by itself negative the finding of a permanent deterioration. As pointed out in previous decisions of this Court the expression "permanent" must be read with reference to the circumstances of the case.