P L D 1955 Dacca 115 (PLP)

BADIUZZAMAN, J.--‑These two appeals arise of two suits by two raiyats for declaration of their title to and recovery of possession of portions of their respective holdings which were diluviated in 1342 B: S. (1935) and for which abatement of rent was obtained in 1344 B. S. with effect from 1937 A.D. The diluviated lands reformed in 1350 B. S. but the plaintiffs were not allowed to possess the same whereupon the present action was brought. The defence was that there was no abatement but complete surrender of the diluviated portions and that accordingly the plaintiffs were not entitled to claim them any more. The learned Munsif found that the abatement in respect of the diluviated portion having been obtained before the amendment of section 86A of the Bengal Tenancy Act made in 1938 and the amended section having no retrospective effect, the plaintiffs were not entitled to claim the disputed land and on this finding he dismissed the suit. This was upheld by the lower appellate Court. Then follows the present appeal, appellants being the plaintiffs. The point urged is that toe Courts below erred in holding that section 86A as it now stands is not retrospective in its operation. The material portion of section 86A as it stood between 1929 and 1938 runs to the following effect: If . . . . (ii) any portion of the lands of a tenure or holding is lost by diluvion and the tenant obtains on that account an abatement of rent in respect of such portion, the tenant shall unless there is a contract to the contrary made by registered instrument, be deemed to have surrendered his rights in such lands or portion thereof, as the case may be . . . " The abatement in the present case having been obtained under the section as it stood before the amendment of 1938, plaintiffs' right to the lands must be held to have been extinguished, specially when there is no registered instrument showing that the pialntiffs reserved the rights to such land or any portion thereof. In the case Kazi Masihuddin v. Akbar Ali and others (58 C L J 468) it was laid down. that under clause (c) of section 8 of the General Clauses Act the right acquired under the intention appeared in the new Act to show that it was intended to be retrospective. The same law with greater precision was4 laid down, in the case Jasada Kumar Ray Choudhury and others v. Abdul Rahman and others (59 C L J 528), and it runs to the following effect : "Any right accrued under a repealed enactment cannot be affected by a repealing enactment unless different inten?tion appears in the repealing enactment, which may be either express or implied". Let us now proceed to test the repealing section in the light of the law laid down in that case. The material portion of the section runs as follows: "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 reappearance 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 reappeared for the period during which it was lost or for four years whichever is less". This is a quotation from subsection 2 (a) of the repealing) section but it does not give us any indication that the B legislators intended to make it retrospective in its operation. This point was dealt with in the cases Gopal hakla and another v. Gopal Munshi (45GWN629), Jiller Rahman Mondal alias Mia v. Dharam Chand Seroge (53CWN501), and in both the cases it was held that the new section was not retrospective in its operation. The learned Advocate for the appellant, however, takes his stand on the last sentence (underlined) of subsection 2 (a) and formulates his argument in the following manner. The repealed section 86A came into operation in 1929 and it remained in force till 1938, i.e? for a period of 10 years. The repealing section, however, gives a tenant an absolute right to claim the reformed land within 20 years of submergence. If the legislators had not intended that the section should be retrospective in its operation, how could a tenant be expected to enforce his right in respect of the lands which lost their existence 20 years before 1938 but reformed during the period between 1929 and 1938. A reply to this argument will not be far to seek. If the lands which lost their existence 20 years before 1938 but reappeared during the period between 1929 and 1938, the tenants will be at liberty to claim it provided they did not obtain abatement under the section 86A as it stud before 1938. The section on which the learned Advocate for the appellant has built up his argument does not indicate that the object of the repealing section was to take away the right already vested in the landlord in consequence of abatement being granted to a tenant at the latter's instance. If the legislators had any such intention it would have surely found place in the new section in precise words. Subsection 2 (a) prescribes 20 years as‑the maximum period during which the tenant's right to the land lost by diluvion would subsist. It does not confer on the tenant a new right to get back the reformed land in respect of which he obtained abatement under the section as it stood before 1929. As soon as the tenant obtained abatement under the old section his right to the land by operation of law, then existing became extinguished. Here in the present case, the abatement having already been obtained under section 86A as it stood before 1938, the tenants are not entitled to claim the reformed land under the new section. In the result the appeals fail and are accordingly dismissed with costs. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Appeals dismissed.