1. It appears to us that the Court below is in error in this matter. It seems that the lands formerly in the occupation of the defendants, and as to which they had acquired a right of occupancy, were submerged many years ago, as were the lands of other tenants.
2. The defendants said: 'The other ryots concerned gave up their lands: we did not give up ours. We did not pay rents, because they were not asked from us.'
3. In these circumstances the lower Courts supposed that, inasmuch as there was no express surrender of the land by the tenants, and the landlord did not in any form re-enter upon the land, and because immediately upon the re-formation the old tenants asserted their rights and commenced cultivation, therefore their right of occupancy had been maintained, and the plaintiff's suit was liable to dismissal.
4. Now the right of occupancy is one which, as defined by the Statute, is to be maintained by regular and punctual payment of the rent payable. It is not sufficient to say, 'We were ready to pay our rent,' or 'The landlord should have sued us for it. If sued, we should have paid it at once.' When tenants desire to rely upon a valuable right, such as a right of occupancy, they are bound to observe the conditions on which the maintenance of that right depends.
5. Both the Courts below in this case have referred to the judgment of the Judicial Committee in the case of Lopez v. Muddun Mohun Thakoor (13 Moo. I.A., 467; s.c., 5 B.L.R., 521). The Munsif cited (and the lower Appellate Court approves of the citation) the passage from their Lordships' judgment, in which it is said: 'This principle is a principle not merely of English law, not a principle peculiar to any system of municipal law, but it is a principle founded in universal law and justice--that is to say, that whoever has land, wherever it is, and whatever may be the accident to which it has been exposed, whether it be a vineyard which is covered by lava or ashes from a volcano, or a field covered by the sea or by a river, the ground, the site, the property remains in the original owner.' But the lower Courts have entirely omitted to notice the concluding passage of the same judgment, in which it is pointed out that the plaintiff, 'as between him and the State, did also take the most effectual means in his power (having the description and measurement of the submerged mouza recorded, and continuing to pay rent for it) to prevent the possibility of any question of dereliction or abandonment being raised against him.' It is that circumstance which not only facilitated the identification of the land, but also maintained the right of the owner, and undoubtedly it seems to us that if the tenants desired to maintain their rights of occupancy, they ought to have paid something in the shape of rent. It might very well be that the rent payable under the circumstances would not be the full rent paid on account of the land before its being sub-merged, and the Court, if called upon to determine what rent was properly payable, might have determined what was payable in respect of the right; and payment of that (possibly a very minute rent) would have effectually maintained the tenants' right. But it is clear that in these cases the defendants, upon a view of what was for their best interests, thought it better not to pay any rent at all. They thus gave up the possible advantage which they might derive on re-formation of the land. We think therefore that the plaintiffs are entitled to judgment in these cases, and that the judgment of the lower Courts must be reversed with costs.