The Judgment on the Court was as follows:—

Rankin, C.J:— In this case, the Plaintiffs appeal from a decree of the learned District Judge of Faridpur modifying the decision of the Subordinate Judge in a suit for rent under a kabuliyat, dated the 9th Aswin 1322 B.S It appears that the tenant under this kabuliyat was really a co-sharer in certain lands with the Plaintiffs and that the lands having been diluviated and having thereafter reformed, the Defendant entered into possession in the exercise of his joint title. Thereafter a certain dispute arose between the parties and it was finally accommodated by the kabuliyat which is now in suit a kabuliyat whereby the Plaintiff's gave a lease of certain lands which were described therein so far as their eight annas share was concerned to the Defendant. It will be observed that at the time this kabuliyat was entered into, the Defendant was a person who had been on the land and was in possession and was in a very good position to know exactly what lands he was in possession of.

The questions which arise in the present suit arise because, first of all, the Defendant says that from a certain portion of the lands of the kabuliyat he has been dispossessed by the Plaintiffs. The learned Judge on that has held that it has not been shewn that he has been dispossessed by the Plaintiffs but that the amount of land that the tenant has been in possession of has undoubtedly decreased. Accordingly, independently of any question whether or not it is the action of the Plaintiffs that has deprived their tenant of this land, he has held that an abatement of rent is to be given under the general provisions of the law. Now, the only question which arises upon that is this: It has been found that the tenant is in possession of certain other lands, namely, 43-68 bighas and the Appellants complain before us that the learned District Judge was wrong in giving an abatement for 41 bighas and odd of land by which the amount of land in the possession of the tenant has been reduced without taking into account the additional land of 43-68 bighas. As to that, there can be no doubt that this kabuliyat, though it mentions the boundaries, mentions boundaries which are not necessarily the same today and to-morrow and a year hence, and if it can be shewn that the extra land in question is contiguous to the suit land and is possessed by the Defendant under colour or the Plaintiffs' right, it would no doubt be unjust to take account of the extent to which the land under the kabuliyat has shrunk on one side without taking into account the extent to which it has increased on the other. The finding of fact, however—I wish it had been more clear and more detailed—is that this area of 43-68 bighas has no connexion with the demised land and Mr. Roy Choudhuri on behalf of the Defendant-Respondent informs us that the Commissioner in the suit had made an enquiry and found that it was distant from the boundaries mentioned in the kabuliyat. If this land had no connexion with the land of the kabuliyat but was an independent trespass upon the land of somebody else, this question of extra land has no bearing upon the question whether the lands mentioned in the kabuliyat have decreased as alleged. I am, therefore, of opinion that it is not open to us in second appeal to interfere on this point with the decision of the learned District Judge.

The next point for consideration arises from an allegation by the tenant Defendant that the Government in connection with a certain neighbouring khas mehal has taken possession of an area of 314 bighas—half of which will be 157 bighas which may be attributed to the Plaintiffs' share. The question is whether with regard to this fact the tenant is entitled to an abatement of rent. Now, I propose to consider this question upon two lines—I propose to consider, first, whether the tenant has a good case on the principle of eviction by title paramount and I propose to consider, in the second place, whether he can make a good case for abatement of rent by virtue of anything contained in cl. (c) of Sec. 108 of the Transfer of Property Act. I would point out that these two questions are really distinct and the principle of eviction by title paramount has never rested upon the covenant for quiet enjoyment. The covenant for quiet enjoyment at common law does not extend beyond the acts of the lessor or of persons claiming through or under him and the question of eviction by title paramount is entirely independent of any wider express covenant for quiet enjoyment which can constantly be found in leases.

The facts appear to be as follows: In 1915, the tenant took this lease of the land of which at that time he was in possession. He made no complaint at the time to the effect that the lessors had not put him in possession of all the lands to which he was entitled. As a matter of fact, no such claim could be made with any great show of justice in the circumstances. It appears that even before this time the tenant had been in various ways recognising the right of Government to certain of the lands which are now in dispute. Be that as it may, there is no pleading in this case and there is no contention before us that the Defendant is entitled to a suspension of rent on the principle that the landlords have failed to comply with cl. (b) mentioned in Sec. 108 of the Transfer of Property Act. We must, therefore, take it that the tenant got possession in 1915 of whatever he was entitled to get. In 1918, we find that the khas mehal authorities were taking steps to settle the boundary between the khas mehal on one side and the Plaintiffs' land on the other under the Survey Act and there was an order by the Collector fixing the boundary in such a way as to lessen the amount of land attributed to the Plaintiffs by the area which is now in question. The provisions of the Act are that the Collector is to proceed to determine the boundaries according to actual possession and that the order of the Collector, until it is reversed or modified by a competent authority, is to have the force of an order of any Civil Court declaring the party to be in possession of the land in accordance with the boundaries as determined by the Collector. I will take it that the facts are that thereupon the tenant in this case was obliged no longer to trespass on or to exercise any right over the land beyond the boundaries. As a matter of fact, the order shows that at that time he was not in possession of land beyond the boundary. The order does not purport to evict anyone. It purports to declare the extent of possession of the parties. The effect of that order is that it is established against the Defendant that he was not in possession beyond the boundaries in 1918: why he was not in possession is a question which is not answered by a mere reading of the order. The order having been made, the tenant took no steps to get it set aside; and he now says that because the Plaintiffs had taken no steps to get it set aside, because the claim by the Government was a claim to a title paramount and because after the order it was legal for the khas mehal officers to treat the disputed land as part of the khas mehal, he is entitled to the benefit of the doctrine which gives an abatement of rent upon eviction by title paramount. On the other hand, it is contended by Mr. Chakravarti on behalf of the Plaintiffs-Appellants that the case so made fails on a most particular point, because there is no proof before the Court that the Government had in respect of this land a title superior to that of the Plaintiffs and had a right to enter upon, the land demised. Upon that, it is quite clear to me that there is no proof in this case of any defect in the Plaintiffs' title. It was open to the Defendant to raise that question and to show that the Plaintiffs had no title and thereby to show that it would have been vain on his part to seek to question by suit the validity of the Collector's order. Had he done so and had he succeeded in proving that, then, in my judgment, he would have brought himself within the principle of eviction by title paramount, because the law requires nobody to bring a vain suit. If it is clear that any suit brought by the Defendant to set aside or overcome the difficulty raised by this order would have been dismissed, there could be neither reason nor convenience in requiring him to bring any such suit. The question is whether, in the absence of any evidence at all on behalf of this Defendant to show that there was a defect in the Plaintiffs' title, he can claim an abatement on the basis of the order and the other facts found in this case. I am clearly of opinion that he cannot. It is essential for the application of this principle that it should be made out not merely that the tenant has had to leave a part of the land demised, not merely that he has done so against his will but that he has done so at the instance of a person who has a right to interfere with his possession. That this has been law in England is recognised by the judgment of the learned Judge and, in my opinion, there can be no doubt that is so. Among the cases on the point, I may refer, first, to the case of Malthey v. Curling , a decision of the House of Lords where the circumstances were very strong. It was a case where the War Office at the time of the war under the powers conferred by the Defence of the Realm Regulations entered on premises which had been let to the lessee and after occupying them for a substantial time left those premises in a state of vary great disrepair and the premises were also burnt down by fire. In that case, the House of Lords laid strong emphasis upon the necessity of showing actual defect in title. Lord Buck-master said: “There has been throughout the case some confusion as to what constitutes a defence on the ground of eviction by title paramount. It is assumed that this means eviction by an act which the lessee could not control; but there is no trace of such a doctrine in any of the authorities. Eviction by title paramount means an eviction due to the fact that the lessor had no title to grant the term, and the paramount title is the title paramount to the lessor which destroys the effect of the grant and with it the corresponding liability for payment of rent.” That this doctrine is old and well-settled may be found from the case of Mayor of Poole v. Whit (2). In that case, it was said: “The plea also states that the Sheriff delivered the demised premises to Parr under the eligit and that, by virtue of the delivery aforesaid, Parr entered and expelled the Defendant. This bound the Defendant to prove that Parr did enter and evict by virtue of that eligit. I doubt if that must necessarily mean that he entered and dispossessed the Defendant by the forms of an ejectment, for the party might yield without that pressure if he chose. But the Defendant was bound to show that Parr, the party claiming, had such a title as conferred a right to eject him.” This is consistent with the law as laid down in this Court by Mr. Justice N.R Chatterjea in the case of Banka Behari Ghosh…Defendant, v. Madan Mohan Roy…Plaintiff, . . Where the tenant had been ejected by a suit by another party and his landlord had not been impleaded in that suit, the Court held that fact by itself availed nothing; it did not even throw the onus of proving title upon the lessor but the onus of proving the lessor's defect in title still remained with the lessee. In these circumstances, it appears to me that the Appellants' case must succeed as regards the contention of eviction by title paramount.

I come then to consider whether in India cl. (c) of Sec. 108 of the Transfer of Property Act gives rise to a different result. Sec. 108 of the Transfer of Property Act is an endeavour to state in a series of clauses the rights and liabilities of lessors and lessees and I shall endeavour to omit from consideration as far as possible the circumstance that nearly all these clauses are expressions of well-settled principles familiar in the laws of England. The first clause with which we are concerned is this: “The lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption.” That is a statutory form of covenant for quiet enjoyment. It is wider than the covenant in England which is limited under the common law because it is not limited to the acts of the lessor himself or of a person claiming through or under him. It is the equivalent of an express covenant for quiet enjoyment commonly—I do not say usually—put in leases. We have, therefore, to examine its meaning. On the face of it, it is a covenant. It is a thing which sounds in damages. It is not a statement that it is the duty of the lessor as between himself and the lessee to take steps actively to protect the lessee's possession. Such a doctrine is wholly alien to the laws of England and it would be wholly unworkable and impracticable. What it means is that the lessor will be answerable in damages if the event contemplated should occur. Cl. (n) has been pointed to as showing that the lessor owes a duty to the lessee to protect him from legal proceedings which would interfere with his possession, but this is entirely contrary to its real purport and effect. That clause throws a duty upon the lessee in order that the lessor may, if he chooses, protect his own interest and may be safe-guarded against the results of a collusive eviction submitted to by the lessee. Ordiparily the measure of damages for breach of the covenant for quiet enjoyment would not be the amount or a proportion of the rent and it is to take, a long step when from this covenant the learned District Judge infers that the tenant can get abatement of rent. Prima facie the two matters are not directly connected and so far as I know there is no authority for connecting them.

The next question is what the events contemplated are: what acts are within this covenant. It is reasonably clear upon the construction which has been put upon it in Indian cases—in particular the case to which I have already referred, namely, the case of Banka Bthari Ghose v. Madan Mohan Roy that the scope of this covenant is to include lawful acts of third persons as well as of the lessor or persons claiming under him. I do not know that this matter can be expounded better than it was expounded in the judgment of Mr. Justice Mookerjee in the case of Uday Kumar Das v. Katyayani Debi . It is clear that what is contemplated by the covenant is lawful entry, eviction or interruption of the lessee. No lessor can guarantee that his lessee will not be subject to trespass or wrongful acts on the part of a third party. What he does covenant is that his title is such that no lawful entry or eviction or interruption will occur.

Now, it is said in this case that, as the Collector has made an order which stands good until it is set aside, the possession of the Government in this case is lawful. In my judgment, that contention is entirely unsubstantial. The order of the Collector declared possession as he found it. It shows that the Government prior to that order had got into possession. If the Government had no right to get into possession, the Collector's order operates to prevent the Plaintiffs or the Defendant from disturbing that possession except by due process of law. But it does not make that possession lawful as against the Plaintiffs or the Defendant for any of the purposes with which we are now concerned. If a trespasser's possession is confirmed in such a manner, he remains a trespasser for the purposes of the present question. One has to look in all these cases to the real source of injury. One has to see when a man is dispossessed by the process of law whether he is dispossessed by his own fault or by the defect in the title of his lessor. In this case, it is necessary to determine whether the entry by the Government which took place prior to this order was an entry of a person having a better right than the Plaintiffs or whether it was a wrongful or tortious act on the part of the Government. Until that question is settled, cl. (c) of Sec. 108 of the Transfer of Property Act is of no use to the Defendant. I am, therefore, of opinion that, on that which was the only remaining question in this case, the learned Judge's decision cannot be upheld. The learned Judge has thought that the doctrine as regards eviction by title paramount is different in India from what it is in England and he has relied wrongly upon the covenant for quiet enjoyment in support of his argument.

In my judgment, this appeal must be allowed and we vary his order by disallowing abatement in respect of the area of 157 bighas 9 cottas 13½ chittaks in the Plaintiffs' share from which the Defendant has been evicted by the Government. The Appellants will get their costs in this Court; but in the lower Courts each party will pay its own costs.

Mukerji, J.:— I agree.

P.C