Macpherson. J.

1. In these appeals there arises the question of the interpretation of Section 38(a) of the Bengal Tenancy Act in which an. occupancy raiyat holding at money rent is authorised to institute a suit for the reduction of his rent on the ground that the soil of the holding has without the fault of the raiyat become permanently deteriorated by a deposit of sand or other specific cause, sudden or gradual. In appeals Nos. 1507 and 1510 this is the only question. In appeals Nos. 1508 and 1509, which both relate to Khata No. 127 it is the most important question, the other question being whether the landlord is entitled to enhancement u/s 30(b) of the Bengal Tenancy Act and if so, how much.

2. Appeals Nos. 1507 and 1510, which relate to khatas Nos. 124 and 126 respectively, will first be considered. The Court below have found that approximately one-eighth and one-tenth respectively of the area has permanently deteriorated by reason of reh (alkali) and deposit of sand and they have allowed reduction of rent proportionate to the area permanently deteriorated. The pleas advanced by Mr. B.P. Sinha on behalf of the appellants are that the deterioration has not been shown to be new, that by the deduction there has been a complete remission of the rent of lands which have permanently deteriorated so that they are held rent-free, and that the holding being at a consolidated rent an average cannot be struck for all the lands constituting the holding and a reduction granted in proportion to the deteriorated area.

3. Now there is nothing in Section 38(a) to support the objection that the permanent deterioration must be new otherwise than in the sense that it must have occurred subsequent to the settlement of the existing rent. On the facts there seems to be no doubt that the relevant deterioration took place after the existing rent was settled.

Again in calculating the amount of the reduction to be allowed u/s 38(a) the Courts below appear to have adopted the principle laid down in Section 52(4) of the Act for reduction of rent on the score of decrease in the area of a holding which, as here, is held at a consolidated or lump, rent, that is to say, an aggregate rent, the components of which cannot be distinguished by reference to the fields constituting the holding.

4. Broadly this idea is sound, provided always that any difference in circumstances is not lost sight of There is indeed no allegation that the plots in these holdings are held at special rates of rent and experience shows that in Shahabad the parties are unable to show the rates for different kinds of land so that it may practically always be assumed that a holding is held at a consolidated rent. The analogy, however, only operates completely when the permanent deterioration is substantially equivalent to loss of the area and no rent at all ought to be payable. Such a contingency would perhaps be rare as the raiyat continues to hold the land from the landlord and some rent, however slight, would naturally be payable.

5. Incidentally it may here be stressed that the conception of the words "permanently deteriorated" as equivalent to "permanently sterile" is erroneous: the word "deterior" is a comparative and equivalent to the English word "worse" and deterioration is therefore merely the state of becoming worse, which of course may present wide variations. In many, perhaps in most cases, the raiyats land will only be partially affected. In such cases it is not contemplated that the reduction should be a complete excision of rent for the area--the permanently deteriorated land should still carry a rent but one corresponding to its depreciated value.

6. In the present case the commissioners report shows that the lands described as permanently deteriorated were actually cultivated and carried a paddy crop, though a poor one. In fact, the deterioration, though giving a statutory claim to reduction did not give a claim to remission of the rent altogether. The lower Courts have, therefore, proceeded upon an unsound principle and the appeal must be remanded for determination of the proper amount of reduction, which in the circumstances must be less than has been allowed. It may be observed that it would probably save trouble in future if the actual rent fixed in respect of the permanently deteriorated area is indicated--it will doubtless here be the difference between the average rent and the reduction allowed. The records will go down forthwith and it is hoped that this litigation which is unfortunately over four years old, will be brought to a conclusion without delay. Costs in these appeals will follow the result.

7. As to holding No. 127 the area of which is 447 acres, the Munsif gave an enhancement in the landlords suit at the rate of four annas in the rupee and a reduction in the tenants suit at the rate of five annas in the rupee, on the basis that l30 acre had permanently deteriorated. The appellate Court held that there should, in view of the permanent deterioration of about one-third (incidentally an over-estimate) of the holding, be no enhancement on the ground of the rise in the price of the staple food crop, which in other suits of the village was allowed at three annas in the rupee and that there should be a reduction of three annas in the rupee u/s 38(1). It does not appear that in khata No. 127 the deteriorated area could be cropped at all.

8. A small point is that a portion of plot No. 1816 is parti kadim and the plot in 1912 when the Record of Rights was recorded was parti jadid eksal (new uncultivated--one year). The area being very tiny, about one-fiftieth of an acre, the parties do not desire to lay any stress on this point. The real mis take in principle is that when deduction has been granted of the whole notional rent for the permanently deteriorated area, enhancement u/s 30(b) has not been allowed in respect of the area in which there has been no deterioration and in which the out-turn of produce is reported good.

9. No doubt the holding is to be considered as a whole but when a principle is adopted it should be followed throughout. In the present instance if the tenant is entitled to a complete remission of the rent of 130/447 of the holding on the ground that the land has become valueless, a deduction which on the grounds set out in the other appeals would seem to be too favourable; it certainly is the case that the landlord ought to have the enhancement of three annas in the rupee on the rent of the remainder of the holding, which it has been found is the proper rate of enhancement in the circumstances of similar holdings in the village.

10. The calculation shows that the resultant reduction of the rent is two and a half-annas in the rupee and the two consolidated appeals are accordingly decreed to this extent only and the parties will bear their own costs in the appeals.