Rankin, C.J:— Two second appeals have been referred to this Full Bench. Each arises out of a suit for recovery of rent and cess in respect of a tenure and the questions of law which have been framed by the Division Bench for our consideration arise in both appeals. These questions are:

(1) Whether the case of Kristo Das Law v. Abdul Karim . A.I.R 1921 Cal. 220, was rightly decided.

(2) Whether in a suit for rent, when the tenant pleads he is not liable to pay the full agreed rent on account of diluvion, and where there is an admission by the plaintiff or it is proved that some diluvion has taken place, the onus is upon the plaintiff to prove what proportion of the rent he is entitled to, or upon the defendant to prove the extent of the diluvion, and the corresponding abatement of rent which he may claim.

2. In neither case is the question governed by any express stipulation, the rights of the parties being governed entirely by the general law. In Second Appeal No. 2879 of 1929, the defendant's contention was that in 1328 and 1329 a portion of the tenure was washed away. This was altogether denied by the plaintiff. As regards 1330 and 1331 it was admitted by the plaintiff that there had been diluvion of certain of the lands in these years. In 1333 (1926) a Civil Court Commissioner held a local enquiry and ascertained the area of land then in existence. The Munsif found that there had been no diluvion in 1328, that in 1329 there had been diluvion of a small area which would be amply compensated by a deduction of Rs. 12 and that as regards 1330 and 1331 as the burden of proof was upon the plaintiff to prove the extent of the diluvion in each year in the absence of evidence adduced by the plaintiff as to the extent of diluvion in these years, it should be taken against the plaintiff that the area found to exist in 1333 is the area upon which rent should be assessed in 1330 and 1331. The lower appellate Court dismissed the appeal.

3. In Second Appeal No. 201 of 1929 the plaintiff's suit was in respect of the years 1327 to 1330. The plaintiff had to admit throughout that large-portions of the land of the tenancy had been washed away. A Civil Court Commissioner reported in 1924 as to the amount of the land of the tenancy which still existed and he further reported as to the land which had been washed away in each of the years in suit. The learned Munsif accepted his findings and allowed abatement at the rate of Rs. 3-12-6 per kani. In this case the learned Munsif did not proceed upon any doctrine of law as to the burden of proof, but proceeded entirely on the evidence which satisfied him as good proof of the facts. The lower appellate Court varied the Munsif's order as regards cess, but otherwise dismissed the appeal. He however relied upon the doctrine that once it is proved that diluvion has taken place, the onus shifts to the plaintiff to prove what extent of land was diluviated in each year.

4. In both the cases the plaintiff has appealed to this High Court in second appeal and disputes the proposition that the burden of proof is upon the plaintiff to show the extent of diluvion in each of the years in suit. The doctrine relied upon in the Courts below was laid down in the case of Kristo Das Law v. Abdul Karim, a decision of a Division Bench of this Court in 1920.

5. Second Appeal No. 201 of 1929 had originally been Set down for hearing before my learned brother, Mukerji, J., sitting alone. He disagreed with the decision in Kristo Das Law's case, and for that reason sent the appeal for hearing by a Division Bench. The referring Judges, Suhrawardy and Graham, JJ., also disagreed with that decision. In my opinion the decision is wrong and should be overruled.

6. The right of a tenant at the general law to claim an abatement of rent by reason of a portion of the land of his tenancy having been washed away by the action of a river cannot now be disputed. The loss by fluvial action of part of the lands of a tenancy is of very frequent occurrence in India. English rivers differ so much from the rivers of India in this respect: cf. Sreenath Roy v. Dinabandhu Sen . A.I.R 1914 P.C 48, that it is not a matter for surprise that there is scant authority in England as to the law to be applied in such conditions. There is however some old authority for the proposition that if land is permanently covered by the eruption of the sea, the tenant is entitled to an apportionment of rent, 1 Ro. Ab. 326; Bac. Ab. Rent (M), and it may be said that the case of Matthey v. Curling . [1922] 2 A.C 180, is not inconsistent with this doctrine, although it seems clear enough that abatement of rent is not permitted by the law of England merely because a portion of the demised premises is destroyed by fire or damaged by an extraordinary flood or occupied by an alien enemy.

7. In India the rule in cases of diluvion has long been settled in favour of the tenant. S. 18, Act 10 of 1859, gave to every occupancy ryot the right to claim abatement if the area of his tenancy was diminished by diluvion. This was repeated by S. 19, Act 8 of 1869, and under Section 52 of the Ben. Ten. Act, every tenant is entitled to a reduction in rent in respect of any deficiency, proved by measurement in the area of his tenancy or holding as compared with the area for which rent has been previously paid by him; the only difference between a ryot and any other tenant is that the ryot is not now permitted to contract out of his statutory right to apply for a reduction of rent under S. 52.

8. In the case of Afsuruddin v. Mt. Shoroshibala Debi . [1863] 1 Marshall 558, the question arose whether a tenant who was a talukdar, and as such not within the provisions of S. 18, Act 10 of 1859, was entitled to an abatement of rent by reason of diluvion. The landlord proved that from 1262 to 1265 he had recovered rent at a certain rate and it was held that these payments

“afforded prima facie evidence of the liability of the defendant to pay at the same rate for 1266, and if the land or any part of it were washed away, the onus lay upon the respondents to prove it…. It was contended that the respondent would not be entitled to any diminution of rent if the land had been washed away. But we think he is so entitled, unless there was an express stipulation that he should pay whether the land was washed away or not. If a man stipulates to pay rent, it is clear he engages to pay it as a compensation for the use of the land rented; and independently of S. 18, Act 10 of 1859, we are of opinion that, according to the ordinary rules of law, if a talukdar agrees to pay a certain amount of rent, the tenant of it is exempt from the payment of the whole rent if the whole of the land be washed away, or of a portion of the rent if a portion only be washed away. According to English law, a tenant is entitled to abatement in proportion to the quantity of land washed away and he is entitled to that abatement in a suit brought by the landlord for arrears of rent.”

9. The same question arose in Enayetullah's case . [1864] W.R Act 10 Rulings 42., which came before the same Judges shortly afterwards and was decided in the same way. The suit was brought by the tenant claiming abatement of rent on two grounds: first, that part of the land had been washed away; and secondly, that another part had been covered with sand. Sir Barnes Peacock referred to the passage in Bacon's Abridgement and to the principle that the title to the rent is founded upon the presumption that the tenant enjoys the thing during the contract, saying:

“In England it is clear that if a portion of a tenant's lands be washed away he is entitled to have an abatement of his rent pro tanto.”

10. Ha want on to express the rule more widely:

“We think that rule is founded on the principles of natural justice and equity, that if a landlord let his land at a certain rent to be paid during the period of occupation and the land is by the act of God, put in such a state that the tenant cannot enjoy, the tenant is entitled to an abatement.”

11. Even as regards the portion alleged to have been covered with sand, he said that

“If the land has been deteriorated or rendered wholly useless by the act of God the tenant would be entitled to an abatement provided there was no stipulation to the contrary in the kabuliyat.”

12. In this sentence the learned Chief Justice would seem to have outstripped the English law and left it far behind.

13. The principle of these decisions has been followed in this province ever since so far as diluvion is concerned and in the Bengal Tenancy Act the principle that rent varies with the area of the land demised has been affirmed by Statute for all classes of tenants. A perusal of Lord Atkinson's judgment in Matthey v. Curling, may lead one to doubt whether the principle upon which Sir Barnes Peacock, C.J, and Sumbhoonath Pundit, J., proceeded was not too broadly stated to be correct as a matter of English law. Indeed it is by no means clear whether the fact that after re formation in situ the tenant can assert a right in the land which has reformed would in English law be compatible with a claim to an abatement of rent. Be that as it may, the rule to be applied in India is justice, equity and good conscience and to ryots living on the margin of subsistence and landlords who are mere rent receivers, the English law may not come up to this high standari where rivers change their courses so as to affect the land demised. In any case the effect of diluvion in this province is now well settled. It will be observed however that there is nothing in these decisions to suggest that the burden of proof is on the landlord to show the extent of the diluvion. On the contrary what is said in the first case is:

“if the land or any part of it were washed away, the onus lay upon the respondents to prove it.”

14. The second case was a suit by the tenant claiming abatement. In both cases Sir Barnes Peacock's view was that the law on this point was the same as the law in England. The next case is Thomas Savi v. Obhoy Nath Bose . [1865] 2 W.R Act 10 Rulings 27.. Bayley and Macpherson, JJ., were dealing with a second appeal in which the lower appellate Court had decided in favour of the landlord that the tenant could not claim in a rent suit to have a deduction made from the rent on the ground of diluvion. They held:

“We have no doubt that in a suit for arrears of rent, the defendant is entitled to a deduction for lands washed away, but the whole onus lies upon the defendant of proving the extent of the deduction to which he is entitled and of showing precisely what lands have disappeared; and the plaintiff, in proving that full rent has ever been paid, has proved a sufficient prima facie case.”

15. In 1869 however in the case of Gopanund v. Lalla Govind . [1869] 12 W.R 109., Sir Barnes Peacock, C.J and Jackson, J., had before them the case of eviction by title paramount, and Sir Barnes Peacock applied the English law as follows:

“According to English law, “if the lands demised be evicted from the tenant, or recovered by a title paramount, the lessee is discharged from the payment of the rent from the time of such eviction,” and if he is evicted from part, the “rent is to be diminished in proportion to the land evicted.” It is laid down in Bacon's Abridgement, Tit. Rent (M): Where a lessor enters forcibly into part of the land, there are variety of opinions whether the entire rent shall not be suspended during the continuance of such tortious entry, and it seems to be the better opinion and the settled law at this day, that the tenant is discharged from the payment of the whole rent till he be restored to the whole possession, that no man may be encouraged to injure or disturb his tenant in his possession, whom by the policy of the law he ought to protect and defend;”

and it has been held that when a lessee is evicted by title paramount to that of his lessor, an apportionment of rent may take place “in an action brought for the rent.” Sir Barnes Peacock went on however as follows:

“It appears to me that the onus is upon the lessor who claims to be entitled to an apportionment to show what is the fair rate of the lands out of which the tenant was not evicted. But the Additional Judge held that as the defendant did not show what was the rent in respect of the lands left in the possession of the tenant, a decree should be given against him for the whole rent. That does not appear to mo to be consistent with justice. It is unnecessary however in this case to decide whether in a case of eviction of part of the lands demised, the onus lies on the lessor or upon the tenant to show what is the fair rent to be paid for the portion remaining in the tenant's occupation, inasmuch as these is evidence in this case from which the amount which ought fairly to be deducted from the full amount of rent in consequence of the eviction of the two mauzas can be ascertained.”

16. Here what Sir Barnes Peacock said as to onus was entirely obiter and he did not refer to any English authorities dealing with the point. An examination of the English authorities will show that the law of England has from very early times been quite definite and precise to the contrary of the learned Chief Justice's opinion. The dictum in any case had reference to a case of eviction by title paramount.

17. In Surendra Narayan v. Dinanath . [1916] 43 Cal. 554, Mookerjee and Beachcroft, JJ., had before them a case of eviction by title paramount from part of the lands of a tenancy. The Subordinate Judge had dismissed the landlord's suit for rent on the ground that there was no evidence to show what rent was payable to the plaintiff in respect of the lands still in the occupation of the tenants. It was contended for the landlord that the burden of proof was upon the tenants to show to what extent they were entitled to abatement of rent. The Division Bench, quoting Sir Barnes Peacock in Gopanund's case, held that the onus was on the lessor. They said:

“This view is plainly well founded on principle because, as stated in Section 102 of the Evidence Act, the burden of proof lies on that person who would fail if no evidence at all were given on either side. The defence asserted that they had been dispossessed of a portion of the land of the tenancy by title paramount. The burden lay upon them to establish the truth of this allegation. They have discharged that harden; consequently it is plain that the plaintiff cannot recover rent at the rate of Rs. 27 a year. If the contention of the plaintiff were well founded, that the burden lay upon the defendants to prove the extent of the abatement, it would be incumbent upon the Court, if no evidence were given on either side, to award the plaintiff a decree at the full rate claimed although the Court was satisfied that he was not entitled thereto.”

18. Kristo Das Law's case was decided in 1920 by Mookerjee and Fletcher, JJ. It was a case not of eviction by title paramount but of diluvion. The plaintiffs sued for their contractual rent; the defendants proved that diluvion had taken place by evidence which though generally trustworthy was not absolutely reliable as to the extent or quantity of land diluviated each year from each holding. The landlord contended that the burden lay on the tenants to establish not merely that there was diluvion but also the precise quantity of land diluviated each year. The Court held in favour of the tenants' reasoning that as soon as it was established that there was some diluvion in respect of the tenure:

“the inference became irresistible that the plaintiffs had put forward a claim which was in part at least exaggerated. We are of opinion that as soon as the fact of diluvion had been established, it followed that, as there was no express agreement to the contrary, the tenants were entitled to an abatement of rent, and the burden thereupon shifted to the landlords (plaintiffs) to prove the reduced amount of rent justly recoverable by them, which could only be done by proving the extent of the diluvion: Kristodas Law v. Abdul Karim.”

19. My brother Mukerji, in his judgment in Second Appeal No. 201 of 1929, has in explaining his reasons for sending the case to a Division Bench dealt with the cases which were relied upon in support of these propositions. He has distinguished Gopanund's case and Surendra's case on the ground that they are cases not of diluvion but of dispossession by title paramount; and has suggested that the rule of law may be different in cases of diluvion:

“The former are cases of breach of the implied covenant and in such cases, if eviction is from a part it is for the landlord to show how and to what extent, notwithstanding the breach which the tenant has succeeded in proving, he retains the right to receive the rent. In those cases it is the landlord who really claims to be entitled to an apportionment. Indeed that is the expression used in the third and the fourth cases quoted above. Diluvion on the other hand, is an act of God and except in very special cases is a matter which is not the result of default of either party. In cases of diluvion it is the tenant who claims the abatement, and it should be for the tenant to make out his plea.”

20. It appears to me, on an examination of the current of authority in India, that Indian decisions have paid too much regard to a passing observation of Sir Barnes Peacock, C.J, an observation expressly stated by him to be unnecessary for the decision of the case. The great authority of that learned Judge has led to his dictum being accepted upon an important point of English law without any sufficient or systematic endeavour to enquire as to its correctness. Sir Barnes Peacock did not hold that the onus was upon the plaintiff, in cases of diluvion, and his observations as to eviction cases have been used to subvert what was settled law. If the matter be enquired into it will be found that English authority has always been to the effect that a defendant who, in answer to an action for rent, pleads that he has been evicted from a portion of the premises by title paramount, has to show from what portion he has been evicted and can sustain his plea only as a partial answer to the landlord's claim. It is true that if a landlord himself unlawfully evicts a tenant from part of the demised premises, and the rent is an entire rent, no portion of the rent is recoverable by him so long as the eviction continues; and it may even be—I do not say it is—that in India as in England the result is the same where the lessee at an entire rent never obtains possession of a portion of the property demised by reason that it is held by a third person claiming under a better title than the lessor. In those cases it is said that the landlord has no right to an apportionment because he can recover nothing.

21. His own tortious act debars him from relying upon the covenant at all until the lessee is reinstated. But those cases apart, where the lessee is evicted from a portion of the demised premises by a person lawfully claiming under title paramount the circumstance that the eviction is due to a defect in the lessor's title has never been regarded as a reason why the landlord should not put his covenant in suit but has always been regarded as a good defence in law to a portion of the landlord's claim for the contractual rent. It is not an equitable right on the part of the tenant, but a legal right. It is not a defence to the whole claim and if pleaded in that way it is demurrable because it does not extinguish the covenant. It is a defence pro tanto, and, as it is only a defence pro tanto, it is said that the lessee has a claim to apportionment because otherwise he would be liable for the whole: cf. Baynton v. Morgan . [1888] 22 Q.B.D 74 at pp. 79, 83. A lessee claiming apportionment must prove the value of the land withdrawn from the demise, ascertained on the date of such withdrawal: Smith v. Maling . [1608] Cro. Jac. 160.. The cases will be found conveniently collected in Halsbury's Laws of England, Vol. 18, pp. 484-85.

22. In Smith v. Maling, the plaintiff in replevin in answer to an avowry for an entire rent reserved on 80 acres of land pleaded eviction by title paramount from 60 acres of the land demised. The plea was held bad on demurrer because the plaintiff ought to show the value of the land so evicted and how the rent ought to be apportioned. Ewer v. Moyle . [1600] Cro. Eliz 771. is an earlier authority to the same effect.

23. Again in Stevenson v. Lambard . [1802] 2 East. 575 the tenant had been evicted by one claiming a paramount title to the moiety of the lands demised. In that case the plaintiff had declared in covenant against the assignee of the term and the only question was whether the form of the action made any difference to the principle. The defendant had pleaded dispossession as though it were a complete defence to the action and the matter came before the Court on demurrer. The plea was held to be had and judgment was given for the plaintiff with leave to the defendant to amend his plea and to plead it only to one moiety of the rent.

24. In Doe Dem Vaughan v. Meyler . [1814] 2 M. & S. 276., the land had been let upon an entire rent but as to three fields the lessor was only a tenant for life. The lessor having died the lease was void as regards the three fields. The question was whether it was not void altogether. The Court of King's Bench followed Stevenson v. Lambard and held that in such a case the rent might be apportioned and that consequently there was no reason to regard the lease as void altogether. They expressly approve of the decision in Stevenson v. Lambard that eviction from a moiety of the premises by title paramount could not be pleaded in bar of the action because the rent might be apportioned.

25. Lastly in the case of Salts v. Battersby . [1910] 2 K.B 155, where the lessee had assigned a part of the premises to another, the question arose as to the apportionment of rent: whether it was to be calculated upon the area or upon the value, and if the latter, whether the value at the date of the severance or the value at the date of the lease. In that case Austen-Cartmell for the defendant admitted that the burden of proof lay upon the tenant to prove what the value was; and indeed English law is clear enough upon the point. The landlord in such a case is not a person who is prosecuting an equitable claim to an apportionment. He is a person to whose legal claim to an entire rent the tenant is in law entitled to make out what is in law a defence to a part of the claim.

26. Sir Barnes Peacock in Gopanund's case, observing that in a case of eviction from a part of the premises by the landlord himself, the defendant was held to have a complete defence, assumed without enquiry and contrary to well settled rule, that in cases of partial eviction by title paramount, the landlord, proving the terms of the tenancy and that the tenant had been put into possession, could only recover upon giving further proof as to the state of affairs existing after the partial eviction. In my judgment, this is not, and never was, the law of England. The landlord is still entitled to recover on the footing of the lease and it is for the tenant in whose favour the law of England allows an apportionment of no other covenant to make good his claim to an abatement and to show the extent to which the eviction has relieved him from the claim for rent.

27. I have not been able to consult Chief Baron Gilberts' Treatisa on Rents but in the Attorney. General's argument before the Privy Council in Imambandi v. Kamleswari . [1894] 21 Cal. 1005, at p. 1011, I find a quotation from the edition of 1758:

“If part of the land that was letten be evicted from the tenant such eviction is a discharge of the rent in proportion to the value of the land evicted.”

28. The effect of the tenant's plea is not that the covenant has gone leaving the landlord with an equity to something different or a right to sue for use and occupation. It is a plea of partial discharge from the covenant and it follows that it must be made good by the tenant if he admits the covenant.

29. In Surendra's case and in Kristo Das Law's case the argument was that so soon as it is shown by the defendant that some diluvion has taken place, the plaintiff could not recover the entire rent. Consequently it was argued that the burden must be upon the plaintiff to show the amount of such rent which he is entitled to recover. In my judgment this argument is altogether without force. If the defendant wants an abatement of rent he must show what abatement he is entitled to and if he does not show that he is entitled to a reduction of any particular amount, there is no difficulty in principle and no injustice in giving effect to the landlord's claim. One might as well put the case of a defendant who in an action of debt proves that he has paid something without proving that he has paid anything in particular. Again, to take a very common type of case, if the plaintiff sues for the agreed price of goods sold and delivered, the defendant, although he has accepted the goods under the contract, may say that the goods were not in accordance with the contract and plead the difference in value as a defence pro tanto to the plaintiff's claim.

30. Whoever heard in such a case of a contention to the effect that the moment it is shown that the goods were not in accordance with the contract the plaintiff's claim is at an end until he can go further and show what was the value of the goods which he in fact delivered? So in an action for rent, the plea of diluvion is a single plea to be taken and substantiated by the defendant. Upon the face of Section 52 of the Ben. Ten. Act, it is hardly possible to contend to the contrary. So fir as I have been able to ascertain no doubt or difficulty had ever been felt upon this point under either Act 10 of 1859 or Act 8 of 1869. The circumstance that landlords in India are given large statutory powers of entering upon land demised in order to measure the area of tenancies in no way imports that the burden of proving variations in area is, as between the landlord and tenant, upon the landlord. The burden of proof depends upon the nature of the case and just as the landlord, under S. 52, must prove his right to additional rent for excess land so the tenant must prove his right to a reduction of rent in respect of deficiency. If a tenant after diluvion wants to get rid of his landlord's prima facie right to the full rant he may bring his suit for abatement of rent, and upon proper proof of the extent of the diluvion his liability will be reduced. If he does not choose this course, then while he can still plead and prove the fact and the extent of the diluvion as a partial defence to a suit for the full rent he can make no grievance of the fact that the landlord claims it from him. At the one time or at the other it is for the tenant to show what he has lost and that he has been partially discharged from the liability which he assumed as tenant. The case of partial eviction by title paramount is not technically before this Full Bench, and though the decisions upon cases of diluvion have made it necessary to deal with the subject, I have thought it right to confine my observations to the English law upon the consequences of eviction which appears tome to have been misunderstood. I do not pretend that as at present advised I see any reason to suggest that the law in India is different as regards the burden of proof in a suit for rent and any attempt to make good such a distinction seems to me to be rendered difficult by the decision of the Judicial Committee in Durga Prasad Singh v. Najendra Narayan . [1914] 41 Cal. 493 at p. 512. But it is not necessary for this Full Bench to pronounce finally upon the matter.

31. In my judgment the first of the two questions put to us should be answered in the negative. To the second I would answer that in the circumstances sat forth in the question the onus is upon the defendant to prove the extent of the diluvion and the corresponding abatement of rent which he may claim. The second appeals should be remanded to the Division Bench for final disposal. Costs before the Division Bench and before us to be in the discretion of the Division Bench at the final determination of the appeal.

Buckland, J.:— I agree.

Suhrawardy, J.:— I agree.

Mukerji, J.:— I agree.

Guha, J.:— I agree.

V.B/R.K

32. Order accordingly.