S.T. Desai, C.J.
1. The short and interesting question that arises for our determination on this petition is whether after reformation in situ of land affected by dilution a person who is a protected tenant under the Tenancy Act of 1948 can assert a right in the land which has reformed.
2. The facts which gave rise to this petition are not now in dispute and not disputable. Petitioner No. 4 is the owner of land admeasuring 23 acres and 5 gunthas out of which 2 acres and 22 gunthas were let out to respondent No. 1 who it is common ground became a protected tenant of that land. That land the subject matter of the tenancy was sub-merged in river Narmada in the year 1947-48 and re-appeared in August 1955. Respondent No. 1 thereupon filed a tenancy suit in the Court of the Mamlatdar which suit was dismissed on the ground that it was barred by limitation. Respondent No. 1 preferred an appeal to the Deputy Collector who reversed the decision of the Mamlatdar and held that the tenancy suit was within the time prescribed by the law of limitation. The landlords carried the matter to the revenue Tribunal which rejected the revision application. The only question raised by the landlord in the revision application was the one relating to limitation. It was however argued on his behalf before the Tribunal that when the land was submerged the tenancy came to an end and on re-emergence of it the landlord became entitled to it without any obligation to respondent No. 1 who had been a protected tenant. The Tribunal expressed the view that since opponent was a tenant admittedly when the suit land was submerged he continued to be tenant on its re-emergence. It disallowed the contention of the landlord that the tenancy became terminated on submergence of the land and the landlord has now come to this Court on this petition.
3. It has been argued before us by Mr. I.C. Bhatt learned advocated for the petitioners that the Tribunal was in error in rejecting the contention of the landlord that the tenant ceased to be such when the land was submerged. It is said that after any land is submerged by any act of nature like flood the tenant loses his right in the land. It has been strenuously urged before us that in any such case as soon as the land is submerged the relationship of landlord tenant ceases to subsist. We are unable to subscribe to any such proposition. In India the general rule in case of diluvion seems to us to be fairly well settled and in favour of the tenant. Our attention has been drawn to a number of reported cases relating to proportionate abatement of rent in case of diluvion but these cases have remote bearing on the principle with which we are concerned in this case and do not afford any particular assistance or guidance in the matter.
4. The rule in case of diluvion rests on the principle which is the very foundation of the provisions contained in Section 108(e) of the Transfer of Property Act. The material part of that section relevant for our purpose is as under:
108 In the absence of a contract or local usage to the contrary the lessor and the lessee of immoveable property as against one another respectively possess the rights and are subject to the liabilities mentioned in the rules next following or such of them as are applicable to the property leased:
(e) if by fire tempest or flood or violence of an army or of a mob or other irresistible force any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let the lease shall at the option of the lessee be void.
5. This clause gives a lessee the option of avoiding the lease by notice if the property the subject matter of the lease is destroyed or rendered substantially and permanently unfit for the purposes for which it was let out in case of any of the events therein mentioned. It is not in dispute that the land in dispute was rendered substantially and permanently unfit for the purpose for which it was let out when it became submerged in 1947 Nor is it in dispute that submergence was caused by an irresistible force. But what is disputed is that Section 108(e) has no application at all to the present case. It is conceded that if Section 108(e) applies to the case before us than the Tribunal was right in the conclusion reached by it and opponent No. 1 became entitled to claim to be a tenant of the land in dispute.
6. The argument on this point of application of Section 108(e) had of necessity to be of the briefest. All that could be urged is that clause is not consistent with the provisions of the Tenancy Act 1948. As would appear from an examination of the provisions of the Tenancy Act of 1948, the act is not a complete enactment and its provisions do not embrace every aspect of the relationship between a landlord and a tenant and their mutual rights and liabilities. Section 3 of the Tenancy Act of 1948 in terms enacts that the provisions of Chapter V of the Transfer of Property Act 1882, shall in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies or leases of land to which this Act applies'. It is evident, therefore, that Mr. Bhatt's clients can only hope to succeed if it is shown that the provisions of Clause (e) of Section 108 is inconsistent with any provision in the Tenancy Act of 1948. We asked Mr. Bhatt to point out any provision relating to termination of tenancy or any other relevant provision in the context of which it can be said that the provision of Clause (e) of Section 108 of the Transfer of Property Act is inconsistent with it. The only section to which Mr. Bhatt has referred us is Section 4 of the Tenancy Act. That section enumerates persons who are deemed to be tenants for the purpose of the Act. There is nothing in that section which seems to us to have any bearing on the present point. Apart from Section 4 Mr. Bhatt has been unable to point out any provision in respect of which it can be said that there is any inconsistent between Section 108(e) and that provision.
7. In the view we take of the matter it is not necessary to refer to some of the provisions of the Land Revenue Code to which our attention was drawn by Mr. V.J. Desai who appears for opponent No. 1.
8. In the result the petition fails and the rule will be discharged with costs.