The Judgment of the Court was as follows:—

This appeal arises out of a suit for rent. The defence was that the Defendant had been ejected from a portion of the land by a title paramount and that he was, therefore, entitled to a proportionate abatement of rent.

It appears that the Administrator-General of Bengal representing the estate of Kumar Indra Chundra Singha Bahadur brought a suit for possession in respect of the land the rent of which is in dispute in the present suit, and certain other lands, against certain persons representing the estate of one Haripada Shaha and who may be referred to in this judgment as the “Shahas”: He claimed the land as appertaining to his estate Sujapur. The Shahas claimed the land as appertaining to their village Juranpur. The suit, however, was decreed and Madan Mohan Roy (the Plaintiff in the present suit) purchased the decree and the decretal land from the decree-holder, and in execution of the decree obtained delivery of possession of the land through Court. While in khas possession of the decretal land, he let out 279 bighas out of the same to the Defendant in 1903. Subsequently, however, the Government settled a portion of the lands of which the rent is claimed in this suit, together with certain other land as reformed land (bed of a river) with the Shahas on the 1st April 1908. On the strength of that settlement the Shahas brought a suit for recovery of possession of some lands including a portion of the land for which the rent is in dispute against the Defendant, Banka Behari Ghosh alone. Banka in that suit, among other defence set up the title of the present Plaintiff Madan Mohan Roy, and also pleaded that the latter should be made a party to the suit. This was disallowed. The Court however, held that the Defendant was a bonâ fide tenant and should not be ejected. The Shahas were accordingly, given a decree for possession by receipt of rent from the Defendant in respect of 131 bighas in May 1912. There was an appeal and a second appeal and ultimately the decree of the Court of first instance was upheld.

The present suit was instituted by Madan Mohan, the Plaintiff, for rent in respect of the 279 bighas of land which was let out by him to the Defendant Banka Behari, who pleaded that there should be an abatement of rent in respect of 131 bighas of land, with regard to which there was a decree obtained by the Shahas against him. The Courts below have come to the conclusion that the Defendant was not entitled to claim abatement of rent, as the Defendant was not dispossessed, and the Plaintiff was not a party to the suit upon which the Defendant elies in claiming abatement of rent. The Defendant has appealed to this Court and two questions have been raised on his behalf. The first is that it is not necessary that the tenant should be physically dispossessed by a person having a title paramount, and secondly that it was not necessary that the Plaintiff should have been a party to the decree in the previous suit which resulted in eviction, in order to entitle the Defendant to claim abatement of rent.

So far as the first contention is concerned, it is true that a forcible expulsion is not necessary, nor is it necessary that the tenant should actually go out of possession, and that if, upon a claim being made by a person with title paramount, he consents by an attornment to such person to change the title under which he holds or enters into a new arrangement for holding under him, this will be equivalent to an eviction and a fresh taking. See Foa on Landlord and Tenant, 4th Edn. 169. But an eviction, whether actual or constructive, must be by a party having a good title. There is no doubt that the Shahas obtained a decree against the Defendant. But that is not sufficient to show that they had a title superior to that of the Plaintiff of the present suit. The learned Pleader for the Appellant relies upon the case of Noorijan Sardar…Defendant, v. Bimola Sundari Gupta…Plaintiff, . . In the first case no question of the lessor's title was in controversy. It was assumed for the purposes of the judgment that the lessor had no title. It was a suit by a lessee for abatement of rent against the lessor, and the only question which the Court had to consider was what was the quantity of land for which the tenant could claim abatement of rent. There was no suggestion in that case that the person who dispossessed the Plaintiff in that suit was not a person having a title paramount. In the second case cited above, the decision was that, where a tenant is induced to attorn to the superior landlord by an offer to accept a reduced rent the doctrine of guasi-eviction does not apply, and in the course of their judgment, the learned Judges referred to the general principle enunciated in Foa on Landlord and Tenant, 4th Edn. at p. 169. The question which we have to decide in the present case was not dealt with in either of the cases cited above.

In the case of Neale v. Mackenzie , Lord Denham, C.J, observed that eviction by title paramount means “eviction by a title superior to the titles both of lessor and lessee, against which neither is enabled to make a defence.” Here although the Shahas have obtained a decree against the Defendant, it cannot be said that they have got a title superior to that of the present Plaintiff who was no party to that suit, and had no opportunity of showing that they had got a title to the land.

It is found in the present case that after the Plaintiff had obtained delivery of possession through Court, he was put into khas possession of the land in suit and he then let out 279 bighas to the Defendant. The Defendant obtained possession and was in possession, when the Shahas brought the suit against him alone and obtained a decree. We do not think, under the circumstances, that the Plaintiff was bound by any implied covenant, which the learned Pleader for the Appellant set up, to restore the Defendant to possession unless it is shown that the Shahas have a title superior to that of the Plaintiff. We have been referred to certain passage from Redman on Landlord and Tenant, 7th Edn. at page 263, where the learned author says “Any proceeding in a Court of Law interfering with the title and possession of the land amounts to a breach of a covenant for quiet enjoyment, e.g, an action of ejectment or for trespass.” But the proposition is qualified by the words “by a person having a lawful title.” See also Woodfall's Law of Landlord and Tenant, 19th Edn., p. 812, where it is stated “The express covenant for quiet enjoyment without any interruption or disturbance by the lessor, his heirs or assigns, even though followed by the words ‘or by any other person or persons whomsoever’ does not extend to the unlawful acts of third persons having no title. The law will never adjudge that the lessor covenants against the wrongful acts of strangers, except his covenant is express to that purpose; for the law itself does defend every man against wrung; and therefore, though one warrants land to another expressly (or covenants for quiet enjoyment generally) yet he does not defend against tortious entries.”

The learned Pleader for the Appellant referred to a passage in Redman that the landlord is allowed to come in, in order to show that he has a good title, and to maintain the possession of the lessee. It is not stated, however, that the landlord is bound to come in a suit brought against the lessee by a person who has not a superior title. There is also no authority for the contention raised on behalf of the Appellant that where a third party has obtained a decree against the lessee the onus is shifted on the landlord to prove that such a third party has got no title.

In the case of Syed Mukhtar Ahmad v. Rani Sundar Koer , it was pointed out that sec. 108, cl. (c) of the Transfer of Property Act provided for an implied covenant to the lessee to hold a lease without interruption and that the clause was wide enough to include disturbance of possession by a person with a paramount title. It was also observed that even before the Transfer of Property Act, it was held that in the absence of an express agreement to the contrary, a landlord is under an implied obligation to indemnify the tenant against ouster or disturbance in his possession by his own acts or by the acts of those who claim under or have paramount right to him, but not against the wrongful acts of strangers. The same view has been taken of the section in Shepherd and Brown's notes to sub-sec. (c) of sec. 108 of the Transfer of Property Act, at page 404, 7th Edition. There it was pointed “The covenant in the unqualified form followed in the section covers the case of the superior landlord, or other person claiming by title paramount, exercising power of re-entry or otherwise dispossessing the lessee. But it does not include a case of disturbance by persons having no lawful title or right of entry.” We do not think, therefore, that there was any covenant to protect the tenant from persons having no title superior to that of the Plaintiff, or that the decree obtained against the tenant shifted on the Plaintiff the burden of proving that the third party had no title. In the case of Rung Lall Singh v. Lalla Roodur Pershad the learned Judges observed. “The Defendant accepted a lease from and was let in possession by the lessors. He has not shown in this suit that his lessors had no title and that the person who ousted him had a title, and he has relied for that purpose upon the result of certain suits one of which in no way affects this property at all and the other in no way affects the title of his lessors who were not parties to it. Therefore the defence which he attempts to raise surely fails.” The observations apply to this case also. It is no doubt hard that the Defendant who has set up the title of the Plaintiff in the suit brought against him by the Shahas should have to pay rent to them as well as to the Plaintiff in respect of the 131 bighas.

It is not for us, however, to express any opinion as to what step should be taken by the Defendant for being relieved from such a position. Having regard to the fact that the Plaintiff was no party to that suit, we must hold that the decree of the lower Appellate Court is right.

The appeal is dismissed with half costs in this Court.

J.N.R

Appeal dismissed.