1. This appeal has arisen out of a suit for recovery of arrears of rent from 1332 to 1335 B. S. at Rs. 22-11-9 with interest and cess at 6 pies per rupee till 1333 B. S. and then at Rs. 3-7-9 per year from 1334 B. S. according to the valuation roll. The defendant contends that a large part of the suit lands has been permanently rendered useless by a deposit of sand and accordingly the defendant by a solenama in a rent suit brought against his tenant reduced the jama. The defendant claims that his jama should also be reduced proportionately. The abatement of rent as claimed by the defendant was allowed by the first Court, but in the appellate Court the suit was decreed in full. The learned District Judge held that Section 38, Ben. Ten. Act, did not apply to tenure holders and also that a tenant is not entitled to abatement of rent on the ground of natural justice. The learned District Judge appears to have overlooked the provisions of Section 52, Clause (b), Ben. Ten. Act, which lays down that:
Every tenant shall be entitled to a reduction of rent in respect of any deficiency proved by measurement to exist in the area of his tenure or holding as compared with the area for which rent has been previously paid by him.
2. In this case the evidence is that the land on account of which tenant claims abatement is covered with sand two cuabits deep. This has been proved by measurement and is not disputed. In these circumstances it must be taken that there has been a reduction of area to the extent covered by sand to a depth of three feet and on this ground, the tenant has a right to abatement of rent. The right to abatement where the land is so covered by sand as to be wholly useless is recognized by Sir Barnes Peacock in Syed Hyder Ali v. Omrit Choudhury, (1864) WR Act 10, Rule 42. The title to the rent is founded on the presumption that the tenant enjoys the use of the land during the contract and if he loses the use of the land owing to no default on his part it is only reasonable that he should not suffer. The landlord cannot complain for if the land had been in his possession he would have suffered equally.
3. In other cases the law recognizes the tenant's right to relief where he has been dispossessed through no fault of his own, for instance, in the case of diluvion; and in principle there seems to be little to distinguish the cases; if instead of an encroachment by a few inches of water there is an encroachment (owing to floods or some other cause) of a few feet of sand rendering the land permanently useless for agricultural purposes, is the tenant on the same principle not entitled to an abatement of rent? True the sand might be removed at considerable expense but the diluviated land might also in many cases be reclaimed and that does not disentitle the tenant to abatement. I have no doubt that in Bihar where gaps have been made in the land by earth, quake the tenant will be held to be entitled to abatement although there has been no alteration in the boundaries of the land let out to the tenant. Clause (a), Section 52(1) recognizes that diluvion is not the only way in which land may be lost to the tenure or holding, and once it has been found in such cases that the use of the land has been as much lost to the tenant as it would have been in the case of diluvion, it is for the landlord to show that there are circumstances which would disentitle the tenant to obtain relief. No such circumstances have been established in this case.
4. In the result this appeal is allowed, the decree of the lower appellate Court is set aside and that of the Court of first instance in its entirety restored. The appellant is entitled to bear costs of the lower appellate Court. I make no order as to costs in this Court. Leave to prefer a further appeal under the Letters Patent has been been asked for and is refused.