1. This is an appeal on behalf of the plaintiff in a suit for rent, and the only question is whether the defendant is entitled to abatement of rent as claimed by him. The defendant is admittedly a raiyat holding at a fixed rate under the plaintiff, who is a putnidar. There is no dispute as to the area of the tenancy, nor is there any question of deficiency in the area. Abatement is claimed on the ground that part of the land comprised in the tenancy has been covered by a deposit of sand several feet deep, rendering it unfit for the purposes of the tenancy. Both the Courts below have granted the abatement. They have based their decision mainly on a ruling of Jack J. in Sm. Achala Daasi v. Bejoy Chand Mahatap (34) 21 A. I. R. 1934 Cal. 831, where the learned Judge held that where part of the land of a tenancy is so covered by sand as to be wholly useless, the case may be regarded as coming within the provisions of Section 52 (b), Ben. Ten. Act, in other words, it will be regarded as a case of deficiency in area, entitling the tenant to a proportionate abatement under the terms of that section. In support of this view, reference was made to a judgment of Sir Barnes Peacock in Syed Hyder Ali v. Omrit Choudhury (1864) 1864 W. R. Act X Rul. 42. The learned Chief Justice was there dealing with a case where the tenant claimed abatement on a twofold ground, namely, (i) that part of his land had been washed away, and (ii) that part of it had been covered with sand so as to have become wholly useless. The Court remanded the case for a determination of the terms of the lease in order to find out if there was anything therein which debarred the tenant from claiming reduction on any such grounds. In making the order of remand, the learned Chief Justice, however, observed that if either of the two grounds alleged by the tenant was established, he was entitled to claim abatement. Quoting from Bacon's Abridgment, 7th Edn., vol. II, page 63, Sir Barnes Peacock proceeded to observe that the rule that if a landlord let his land at a certain rent to be paid during the period of occupation and the land is, by an act of God, put in such a state that the tenant cannot enjoy, the tenant is entitled to an abatement as rule of natural justice and equity. In construing the words of Section 52, Ben. Ten. Act, however, we do not think we are at liberty to import principles of natural justice and equity. Whether apart from the provisions of the section, a tenant may, on principles of natural justice and equity, claim abatement is a different question. In our opinion, the language used in Section 52 does not justify the interpretation which Jack J. was inclined to put upon it. We do not think that deficiency in area can be construed to mean and include deficiency in the area fit for cultivation or for the purposes of the tenancy. That would, in our judgment, be an unwarrantable extension of the ordinary meaning of the word 'deficiency.' Clause (a) of Section 52, which for this purpose may be regarded as a counterpart of Clause (b) no doubt speaks of loss of the land of a tenure or holding by diluvion 'or otherwise.' The words 'or otherwise' must refer to a cause similar to diluvion, and those words should be interpreted as referring to something similar to diluvion and cannot, in our opinion, be regarded as wide enough to let in grounds of natural justice and equity. It is not necessary for our present purposes to consider whether an earthquake which might cause a complete subsidence of the land may or may not be regarded as a natural event of the same kind as diluvion. But we are not at all satisfied that a mere deposit of sand, although it may be described as permanent, can be placed on the same footing. In our view, therefore, the defendant in the present case could not claim abatement under the provisions of Section 52, Ben. Ten. Act.
2. There is a further bar in his way, and that is created by Section 18 (2) of the Act. Section 18 (2) specifically enacts that the provisions of Sections 23A to 38 (both inclusive) shall not apply to raiyats holding at fixed rates, even though such raiyats have a right of occupancy in the lands held by them. It is not disputed in the present case that the defendant, though a raiyat holding at a fixed rate, is all the same an occupancy raiyat. In the case of an occupancy raiyat, Section 38 (1) expressly provides that such a raiyat may institute a suit for the reduction of his rent on the ground, among others, that the soil of the holding has without the fault of the raiyat become permanently deteriorated by a deposit of sand or other specific cause, sudden or gradual. Incidentally, it may be said that the plaintiff appellant concedes that the right to bring a suit for reduction of rent under this provision includes a right to set up a plea for reduction of rent by way of defence. The question is whether the defendant here is entitled to claim the benefit of this provision, notwithstanding Section 18 (2). On a plain reading of Section 18 (2), it would appear that its object was to exclude raiyats holding at fixed rates from the benefit of the provisions enacted in Sections 23A to 38 for occupancy raiyats. The learned advocate for the defendant, however, argues that that is not the necessary effect of Section 18 (2). It is pointed out that the various sections of the Act applicable to occupancy raiyats which are mentioned in Section 18 (2) are not necessarily provisions conferring rights on occupancy raiyats; some of them also impose restrictions on such raiyats, and it is contended that Section 38 (1) is a provision of the latter description, so that the combined effect of reading Section 38 (1) with Section 18 (2) will simply be that raiyats holding at fixed rates are exempted from the restrictions which are imposed on the rights of occupancy raiyats. Support is sought for this interpretation from the use of the words 'not otherwise' occurring in Section 38 (1). The Legislature is not content merely with providing that an occupancy raiyat may institute a suit for reduction of rent on one or more of the grounds specified in the section, but goes on to add the words 'and, except as hereinafter provided in the case of a diminution of the area of the holding, not otherwise.' The argument is undoubtedly ingenious and might perhaps have some force, if it could be predicated with certainty that Section 38, in so far as it gave a right of suit to an occupancy raiyat for certain purposes on certain grounds, did not purport to confer any rights whatsoever. The grounds specified in Section 38 are set out in three clauses: (a), (b) and (e). As regards (a), there might possibly be some basis for the suggestion that such a ground forms part of the ordinary law of landlord and tenant, which would apply in every case in the absence of any contract between the parties or any statutory provision to the contrary. We do not think, however, cls. (b) and (c) may be regarded in that light. We are accordingly not prepared to accept the argument that all that Section 38 (1) was intended to lay down was to limit the rights of occupancy raiyats under the general law, and not to create any special rights in their favour.
3. If we are right in this view, it follows that in so far as Section 18 (2) enacts that the provisions of Section 38, among other sections, shall not apply to raiyats holding at fixed rates, it means that a raiyat holding at fixed rates is debarred from the rights which an occupancy raiyat has under S.38 (1). This is, in fact, the view which has found favour with a Special Bench of the Patna High Court in Dukha Lal v. Mt. Manabati ('36) 23 A. I. R. 1936 Pat. 341. Fazl Ali J. delivering the judgment of the Special Bench, while holding that Section 52, Bengal Tenancy Act, being more general than Section 38, would be applicable even to a tenant holding under a mukarrari lease, was not prepared, However, to extend the benefit of the provisions of Section 38 to such a tenant. His Lordship observed:
I think from this it may be pertinently argued that if the Legislature intended that the principle underlying Section 88 should be applicable to all classes of tenant, it would not have confined it merely to occupancy tenants and the section might have been drafted in general terms as Section 52 has been drafted.' 'Thus' he goes on to add
if we are to decide the present case merely upon the express provisions of the statute, there can be no warrant for holding that a tenant who holds under an istamrari mukarrari lease is entitled to claim reduction of rent on the ground that his land is permanently deteriorated, or has become useless for cultivation.
4. We do not think that the view we are taking is even opposed to principles of natural justice and equity. Admittedly, here was a tenant who was holding under a mourashi mukarrari lease; in other words, under a contract with the landlord which bound him and his successors to pay a fixed sum as rent. That meant that the rent was not liable to variation unless there was any provision for that purpose in the contract, or unless, notwithstanding the contract, the statute conferred any right to variation. We have held that the statute here does not entitle the defendant to claim any variation of the rent, and we have not been referred to any terms in the contract of tenancy which would justify such variation. The indenture of the lease, if there was any, has not been produced, and in its absence, therefore, the Court is entitled to assume that the terms of the tenancy require the payment of an unvarying and invariable rent. For all these reasons, the appeal must be allowed; the judgment and decree of the Courts below set aside and a decree be passed in favour of the plaintiff-appellant for the full amount of rent claimed. The claim for damages was not pressed and is disallowed. The plaintiffs are entitled to their costs.