1. This was a suit for arrears of rent payable by an agricultural tenant. The main defence was that the area of the holding bad been decreased by diluvion and that the defendant was entitled to remission of rent under a local custom. The trial Court found that the alleged custom, which is described as the custom of balpanchat and bijmar, did not prevail in the village. So the defendant was not entitled to any remission by virtue of the alleged custom. The question then arose whether the Court should not grant a remission under Section 72, Agra Tenancy Act, 1926. The Court found that over 33 bighas out of the holding of about 38 bighas had been removed by diluvion and that a further area of the holding was unculturable. The Court took the view however that no remission could be granted under Section 72, since that section does not apply to alluvial tracts and accordingly decreed the plaintiff's claim in full. The lower appellate Court concurred in finding that the alleged custom under which the defendant claimed remission of rent was not proved and held that Section 72 does not apply to this case because remission had been claimed under a particular custom of balpanchat and bijmar. The only question for our decision in this second appeal is whether the Courts below have correctly held that in the circumstances of this case, no remission can be given under Section 72, Tenancy Act. Although Section 72 reproduces the provisions of Section 50, Tenancy Act of 1901 almost word for word, the provisions of the section do not seem to have been the subject of judicial interpretation. No previous decisions have been cited by either party. Under Section 72 of the present Tenancy Act, the Court when making a decree for arrears of rent, can allow whatever remission appears to be equitable on the ground that the area of the holding was decreased by diluvion or otherwise, or that the produce thereof was diminished by drought, hail, deposit of sand or other like calamity during the period for which the arrear is claimed. Sub-section (6) lays down:
The provisions of this section shall not apply to remissions of rent claimed in alluvial tracts under any local custom providing for such remissions in holding, the culturable area of which has been decreased by diluvion, deposit of sand or the like causes.
2. The trial Court took this to mean that the provisions of Section 72 are not applicable to alluvial tracts in any circumstances. We think this is clearly wrong as Sub-section (6) only says that the section shall not apply to remissions of rent claimed in alluvial tracts under any local custom. The view taken by the lower appellate Court appears to be that if the tenant makes a claim for remission under an alleged local custom, but is unable to the existence of such custom, then no remission can be granted under Sub-section (1). It is possible to read Sub-section (6) in this sense and to hold that if the tenant claims a remission under a local custom, then no remission can be made under Section 72 whether the alleged custom does or does not exist. We think that this is a narrow interpretation of the sub-section and that it does not carry out the intentions of the legislature. In the present case, the lower appellate Court has upheld the finding of the trial Court that the alleged local custom does not prevail in this village. This is a finding of fact which is binding upon us in second appeal. But in our opinion, the mere fact that the tenant has claimed a remission under an alleged local custom which he has failed to prove does not prohibit the Court from granting a remission under Section 72. We think that the local custom referred to in Sub-section (6) means an existing local custom and does not apply to a local custom which is merely alleged to exist but in fact does not exist. We take Sub-section (6) to mean that if there is a local custom under which remission of rent can be claimed in alluvial tracts by reason of diluvion and similar calamities and if a claim for remission is made under such local custom, then the provisions of this section will not apply. This is a more liberal interpretation of the sub-section and we consider it more likely to give effect to the true intention of the legislature than the narrow construction which has been put upon it by the Courts below.
3. We accordingly allow the appeal and set aside the decree of the Court below. The case will be returned to the trial Court for taking action under Section 72 if the Court, in its discretion considers that the full amount of rent cannot be equitably decreed. The appellant will got his costs in this Court and the Court below. Costs in the trial Court will abide the result.