Holmwood, J.:— These second appeals raise the question whether or not the Respondents are entitled to abatement of rent under sec. 38 of 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 reappears 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 but it should have been made under sec. 52 and not under sec. 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.
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 proper 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 sec. 38 altogether, and this was clearly pointed out in the case of Gouri Patra v. H.R Reily. 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, 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 sec. 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 Patra's case 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.
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.
The result is that the appeals are dismissed. But as the point was one win could fairly be raised, each party will bear his own costs in this Court.
Walmsley, J.:— I agree that the appeals should be dismissed.
S.C.M
Appeals dismissed.