P L D 1960 Dacca 39 (PLP)

2. Mokam Sardar, her father, had 2 jotes, one in Mouza Pakulya, and another in Mouza Dubail, and also had two wives. After the death of Mokam Sardar, there was a partition amongst his heirs by which the children of the first wife got the jote in the Dubail Mouza which has been recorded in the name of a son of Mokam by his first wife, and the children of the second wife including the plaintiff got the jote in Pakulya Mouza which has been recorded ‑in the name of Tena, one of the brothers of the plaintiff. While thus in possession, in Poush, 1353 B.S., the defen dants dispossessed the plaintiff. Hence the suit.

3. Defendants Nos. 1 to 5 filed a written statement, but defendant No. 1 compromised the suit, and the suit was contested by defendants Nos. 2 to

5. Their defence is as follows : Both jotes belonged to Mokam, but there was no partition as alleged by the plaintiff. The jote in question was diluviated in 1318 B. S., and, as such, Mokam left for Assam and other places without making any arrangement for payment of rent and for cultivation. In 1342 B. S , the jote re‑appeared, and landlords took the lands in khas, and resettled the same with Maniruddin, full brother of the plaintiff, and Samser, son of Khalil, son of Mokam. Maniruddin in his turn made a girt of all his right, title and interest in the property to Samser, nephew of Manir by a hiba‑bil‑iwaz in 1344 B. S., corresponding to 1937, vide Exht. A. The defendants purchased the interest of Samser by different kabalas in 1347 B. S. It has further been pleaded that the plaintiff, as such, has no right, title and interest nor possession in the suit lands.

4. The trial Court held that there was a partition between the heirs of Mokam, and the jote in Dubail Mouza fell to the share of the children of the first wife, and the jote in Pakulya fell to the share of the children of the second wife including the plaintiff ; that there was no surrender ; that the original tenants had still their subsisting interest which was also evident by the recital in the transfer made by Maniruddin in favour of Samser, and Samser in favour of the defendants ; that Samser got by hiba only the right, title and interest of Maniruddin, and plaintiff's share was not in any way affected and, in this view of the matter, the trial Court decreed the suit. On appeal by some of the defendants, the lower Appellate Court held that there was a partition as alleged by the plaintiff ; that the land in suit went under water ; that the tenants obtained remission of rent on the 8th September 1925 ; that in view of the remission of the rent it would be presumed that there was surrender of the tenancy by the tenants, and, in this view of the matter, it dismissed the suit. Hence, the present appeal at the instance of the plaintiff.

5. Mr. Jane Alam, the learned Advocate for the, appellant, contends only one point, namely, the lower Appellate Court erred in law in holding that the original tenant would be presumed to have surrendered the holding in view of the remission of rent in 1925.

6. In order to understand this point, it is necessary to refer to the law prevailing at different times. Before 1928, if there was any diluvion of any land or portion thereof, then the tenant under the general law was entitled to claim abatement of rent on the ground of diluvion, and, by the remission of rent due to diluvion, the tenancy did not cease to exist, partially or wholly, and the tenant did not lose the right to resume the land on re‑appearance, as held in the case of Secretary of State for India in Council v. Midnapore Zamindary Company, Limited and others (641A281=41CWN1061). By the amendment of 1928, section 86‑A was introduced in the Bengal Tenancy Act, and, by this, it was provided that if any portion of land or any land of a tenure or holding be lost by diluvion, and the tenant obtained abatement or remission of rent on that account, the tenant would be, unless there was any contract to the contrary made by registered instrument, presumed to have surrendered his right to such land or portion thereof. Thereafter, in 1938, the amended section 86‑A was replaced by a new section 86‑A, which runs as follows :‑

"(1) If the lands of a tenure or holding or a portion of such lands are lost by diluvion, the rent of the tenure or holding shall be abated by an amount which bears the same proportion to the rent of the whole tenancy as the area lost bears to that of the whole tenancy. (2) (a) Notwithstanding anything contained in this Act or any other law or any contract to the contrary, the right, title and interest of the tenant or his successors‑in‑interest shall subsist in such lands or portion thereof during the period of loss by diluvion not exceeding twenty years, and the tenant or his successors‑in -interest shall have right to immediate possession on the re‑appearance of such lands or portion thereof within twenty years of the loss by the diluvion, and the landlord shall have right to the arrears of rent without interest or damage in respect of the land which has re‑appeared for the period during which it was lost or for four years, whichever is less."

7. It appears from the amended section 86‑A of 1928 and section 86‑A of 1938 that the provisions of these sections have not been made retrospective either by implication or by express provi sion, as there is no express provision in the Act making them retrospective nor can it be inferred from the language of the section that they have been made retrospective, as held in the case of Jillar Rahman Mondal alias Mia v. Dharam Chand Seraogi and others (53 C W N 501) and the case of Said Ali Khan and others v. Md. Aseruddin Biswas and others (P L R 1953 Dacca 232). So it appears to me that each case will be governed by the law prevalent at a time when the abatement of rent due to diluvion is obtained. In the present case, diluvion took place long before 1928, and abatement was obtained on the 8th September 1925, as held by the lower Appellate Court. Furthermore, it has not been found by the lower Appellate Court that any abatement of rent was obtained by the tenant from the landlord for diluvion after the amendment of 1928, and, as such, the rights of the parties before me should be decided according to law prevailing at the time of abatement of rent, namely, the 8th September 1925. From the above discussion of law, we have seen that if a tenant before amendment of 1928 took any abatement of rent due to diluvion of a portion of the ‑land or whole of the land of the holding under the general law, the tenant was entitled to resume the land diluvi ated on re‑appearance as he did not lose his right, title and interest in the land, submerged, due to abatement of rent on account of diluvion. Hence, as there is no finding or any evidence or record to show that the tenant took abatement of rent due to diluvion after the parsing of the amended section 86‑A of the Bengal Tenancy Act in 1928, and, as the land admittedly re‑appeared before 1938, it cannot be presumed or found that the plaintiff lost his right, title and interest in the lands submerged. So the finding of the learned Judge that the tenant would be presumed to have surrendered the tenancy by obtaining abatement of rent in 1925 is not maintainable, and, as such, the contention of the learned Advocate for the appellant that the plaintiff is entitled to get her right declared and joint possession is a sound one.

8. Mr. Nurul Islam, the learned Advocate for the respondents, has referred to an unreported decision of this Court in S. A. 652 of 1951 in support of his contention that there it is found that if abatement of rent was obtained before 1928, it will be presumed that the land submerged was abandoned. In my opinion, the case instead of supporting the learned Advocate rather goes against him, as in that case the principle enunciated in the case of Jillar Rahman Mondal alias Mia v. Dharam Chand Seraogi and others has been accepted, and the case has been relied on. In the case reported in 53 C W N 501, it has been held that where abatement of rent was obtained before 1928 on account of diluvion, the tenant thereby has not lost his right, title and interest in his tenancy under the general law, and can resume the land submerged on re‑appearance but if the tenant obtained remission of rent after the amendment of 1928, and before the amendment of 1938, then it will be pre sumed that the tenant has surrendered.

9. In the result, the appeal is allowed with costs, and the judgment and decree of the lower Appellate Court are set aside, and those of the trial Court are affirmed.

10. Leave to appeal under Clause 15 of the Letters Patent asked for is refused. K. B. A. Appeal allowed.