1. These second appeals raise the question, whether or not the respondents are entitled to abatement of rent under Section 38 of the Bengal Tenancy Act on a finding by the Courts below that the respondents will have to pay rent as fixed by the Settlement for karary land, if the land re-appears or gets covered with earth. There were two descriptions of land in suit, and it is admitted that as far as the land that has been washed away is concerned, the abatement is permanent bat it should Lave been made under Section 52, and not under Section 38. Still the fact remains that even this land, as the Subordinate Judge points out, may come back again. We are, therefore, met with the proposition that nothing in this world can be said to be permanent.
2. As regards the question of the sandy land, which is the point really argued before us, it is contended that there ought to be a remand for a prqjjer finding whether the deterioration is permanent or not. But both the lower Courts have said, and in our opinion erroneously said, not as a point of fact but as a matter of interpretation of the section, that the deterioration is not permanent inasmuch as, they both say that, when the previous state of things is restored the rent will have to be restored also. To give effect to any such interpretation of the word permanent' would be to do away with the effect of Section 38 altogether, and this was clearly pointed out in the case of Gouri Pattra v. Beily 20 C. 579 at p. 586. The learned Judges, say: We think the Judge is wrong: He seems to think that a deterioration ought not to be held to be permanent if by the application of capital and skill the cause of the deterioration might be removed. We are of opinion that a more liberal interpretation must be put on the word and it must be construed with reference to existing conditions.' Now we think that this is a very sound legal proposition that the word permanent' in Section 38 must in every case be construed with reference to existing conditions; and when a piece of land gets covered with sand, the deterioration is permanent with reference to existing conditions, for no human being can tell when it may please a Higher Power to cause the river to wash away the sand again or to deposit fresh earth upon it and the case of an absolutely vague and uncertain event like this is even stronger than the example given in Gouri Pattra's case 20 C. 579 at p. 586 of the application of human capital and skill. The more uncertain the result is the more it must be held to come within the meaning of the word permanent as construed with reference to existing conditions.
3. Both the Courts below have given the decree for abatement as asked for, and it is not necessary to vary the decree in any way merely because we consider that the passage in both the judgments stating what will be the rent in some future contingency, which has not arisen, must be expunged.
4. The result is that the appeals are dismissed. But as the point was one which could fairly be raised, each party will bear his own costs in this Court.
5. Walmsley, J.--I agree that the appeals should be dismissed.