Mookerjee, J.:— These two appeals have been preferred under Cl. 15 of the Letters Patent against the judgment of this Court in the two suits for rent, inasmuch as the Judges of the Division Bench were equally divided in opinion. The suits were instituted by the appellant for the recovery of arrears of rent from the defendant, in respect of a tenure, for two consecutive periods. The grounds put forward by way of defence included a claim for abatement of rent on the allegation that the defendant was not in possession of the lands in Mouzah Daskati comprised in the tenancy. The trial Court gave effect to this contention.
2. On appeal to this court Mr. Justice Woodroffe held that the view taken by the Court of first instance was well founded. Mr. Justice Cuming held on the other hand, that the claim for abatement could not be sustained in respect of the lands of Mouzah Deskati. The result was that under Section 98, sub-Section (1) of the CPC, 1908, the decrees made by the Subordinate Judge stood confirmed. On the present appeal, the controversy was centred on this question and it is consequently sufficient to recapitulate concisely such only of the material facts as bear upon the solution of the point argued before us. On the 27th, November, 1878, Satyendra Nath Tagore granted a reclamation lease to Ananda Cbandra Banerjee and Protap Narayan Sarkar, in respect of lands in the Sundarbuns, estimated to cover an area about 3800 bighas within specified boundaries. The lands comprised several Mouzahs including Daskati. As has since traospired this Mouzah was situated in four revenue paying estates, namely 982, 991, 992 and 993. Tagore was the proprietor of three of these estates, namely 991, 992 and 993 which included all the lands of Mouzah Daskati, except 61 acres comprised in estate 1982; this latter estate was sold for arrears of revenue on the 10th June, 1875 and was purchased by one Hari Charan Banerjee on behalf of Hari Charan Chowdhury as recited in the deed of release dated 7th January, 1877.
3. Consequently under the lease granted by Tagore on the 27th November, 1878, Banerjee and Sarkar acquired a good title to possession of the lands of Daskati except the area just mentioned and the fact is indisputably established that they did obtain possession of all the lands covered by the lease granted to them within the specified boundaries which they expressly covenanted to keep in tact. Ten years later, Hari Charan Chowdhury (whose widow is the defendant respondent in these litigations) purchased at an execution sale held on 20th December 1887, the lands of an under tenure in Daskati comprised within his estate 982 and obtained delivery of possession through Court on the 6th April, 1883; under colour of this purchase, Chowdhury forcibly took possession of all the lands of Daskati, and on or about 12th April, 1888, he dispossessed Banerjee and Sarkar of the lands of Daskati included in their tenancy. Banerjee and Sarkar were, as will presently appear, in embarrassed circumstances: and did not take immediate steps to recover possession of those lands by ejectment of Chowdhuri. They had already defaulted to pay rent to Tagore, who had instituted a rule against them early in 1886 for recovery of arrears due under the lease of the 27th November, 1878, in respect of the years 1882-85. The result was that on the 24th February, 1887, an amicable settlement was effected between Tagore on the one hand and Banerjee and Sarkar on the other. The latter admitted that the lands in their occupation measured not 3800 but 4300 Bighas, and they agreed that they would not be competent to apply for abatement of rent for the said admitted 4300 Bighas on any ground whatever.
4. They further agreed as to the amount of arrears actually due, which they undertook to pay in specified instalments. The matter was placed before the Court on the 25th February, 1887; when the compromise was confirmed, and on the 8th March, 1887, a decree was drawn up on its basis. Sarkar and Banerjee however, did not carry out the terms of the decree, which was accordingly enforced by execution and on the 20th March, 1889 one Nilkantha Singh became the purchaser at the sale which followed in due course. Singh, in his turn, failed to pay rent regularly, and the result was the institution of a suit against him by Tagore for recovery of arrears for the year 1889-1890. Singh resisted the claim on the ground that he was not in possession of the lands of Daskati and was entitled to proportionate abatement of rent.
5. The trial Court upheld this contention, and on the 28th August, 1891 made a modified decree in favour of Tagore. On appeal, the District Judge approved of the same view on the 17th February, 1892. But, on second appeal to this Court, Norris and Banerjee, JJ. held on the 29th August, 1893, that Singh who and purchased at the sale in execution of the consent decree was bound by the agreement that rent would be paid in respect of 4300 Bighas and that no remission would be claimed on any account whatever.
6. In support of this view, reliance was placed upon the decision of Wilson and Field, JJ., in Ishan Chandra v. Chandra Kanta(1). The consequence was that this Court varied the decree and allowed the claim for rent in respect of the entire area of 4300 Bighas. This decision has found its way into the reports; Satyendra Nath v. Nilkantha(2).
7. This decree was enforced in due course, and on the 16th April, 1894, the defendant, Katyani Debi, wife of Hari Charan Chosvdhury, became purchaser at the execution sale. As already stated, Banerjee and Sarkar had made no attempt to eject Chowdhury from the lands of Daskati during the brief period which intervened between the 12th April, 1888 when the dispossession took place and the 20th March, 1889 when their tenure was sold up by Tagore and passed into the hands of Singh. Singh also did not take recourse to litigation to eject Chowdhuri during the four years which intervened between the 20th March, 1889 when he purchased and the 16th April, 1894, when his tenure was sold up and purchased by the present defendant.
8. The defendant, as might have been anticipated has never endeavoured to recover the lands of Daskati from her husband, or after his death, from his representatives-in-interest. On the other hand, she appears to have amicably paid to the landlord the entire rent due year after year since the date of her purchase. The interest of the landlord has, by successive transfers and devolution, now become vested in the present plaintiff, who has instituted these two suits for recovery of arrears; the first covers the period 1916-1917 and the second 1917-1918. In each suit rent is claimed at the contract rate 13 as per bigha mentioned in the Kabuliat of the 27th November, 1878, in respect of an area of 5161 Bighas which is alleged to be the area now found by actual measurement in the possession of the defendant.
9. The claim has been resisted on a variety of grounds which need not be enumerated for our present purpose. It is sufficient to state that one of the objections was that the defendant was entitled to abatement in respect of the lands of Mouzah Daskati which were annexed by her husband on the 12th April, 1888.
10. The Subordinate Judge, as already indicated, gave effect to this contention. Mr. Justice Woodroffe has expressed his opinion in favonr of the same view, while Hr. Justice Coming has held that the wrongful seizure by Chowdhury which might have been remedied by recourse to law by Banerjee and Sarkar or by Singh or by the defendant herself, cannot be invoked to sustain the plea of abatement.
11. On behalf of the tenant defendant reliance has been placed on the rule that in the absence of a contract to the contrary, the lessor is deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on him, he may hold the property during the time limited by the lease without interruption. This principle is of no assistance to the defendant, because it does not include a case of disturbance by persons having no lawful title, right of entry. Reference may in this connection be made to the exposition contained in the classical judgment of Sir John Vaughan, Chief Justice of the Court of Common Pleas in the case of Hayes v. Bicherstaff(3).
“By covenant in law the lessee is to enjoy his lease against the lawful entry, eviction or interruption, of any man, but not against tortious entries, evictions and interruptions and the reason of law is solid and clear, because against tortious acts lessee hath proper remedy against the wrong doers.”
12. The Chief Justice then shows that the express covenant like the implied covenant protects the lessee only against lawful disturbance of strangers, and summarises the inconveniences, if the law should be otherwise.”
“1. A man's covenant without necessary words to make it such is strained to be unreasonble, and therefore improbable to be so intended; for, it is unreasonable that a man should covenant against the tortious acts of strangers, impossible for him to prevent or probably to attempt preventing.
2. The covenantor who is innocent, shall be charged, when the lessee hath his natural remedy against the wrong-doer: and the covenantor made to defend a man from which the law defends every man, that is, from wrong.
3. A man shall have double remedy for the same injury against the covenantor, and also against the wrong-doer.
4. A way is open to damage a third person (that is the covenantor) by undiscoverable practice between the lessee and a stranger, for there is no difficulty for the lessee secretly to procure a stranger to make a tortious entry, that he may therefore charge the covenantor with an action.”
13. The Rule is now firmly settled that like the express covenant the implied covenant protects the lessee against all disturbance by the lessor whether lawful or not, save under a right of re-entry but as against other persons it protects the lessee only against lawful disturbance; Nash v. Palmer(4), Cranger v. Colline(5), Young v. Raincock(6), Sanderson v. Berwick(7), Walis v. Hands(8).
14. A similar view was adopted in Donzelle v. Girihari Singh(9) where it was stated that in the absence of any express agreement to the contrary, a landlord is under the implied obligation to indemnify his tenant against ouster or disturbance of possession by his own act or by the acts of those who claim under him or have a right paramount to his but not against the wrongful acts of third parties. To the same (effect are the decisions in Vaithilinga v. Vithikinga(10), Tayawa v. Garshivappa(11) and Mukkter v. Sundar(12).
15. In the case before us, as we have already seen, Banerjee and Sarkar were wrongfully deprived of the lands of Daskati by Chowdhuri who had no lawful title thereto. They had their remedy against Chowdhuri and even if they, or after them, Singh, acquiesced in the dispossession, the defendant might have recovered possession of the lands from her husband Chowdhuri. Consequently the defendant cannot successfully claim the benefit of the rule of implied covenant for quiet enjoyment.
16. On behalf of the defendant, the contention has next been put forward that the plaintiff landlord is not entitled to the full rent, as there has been a breach of the implied covenant to give possession. In support of this proposition reliance has been placed upon the decision in Coe v. Cley(13), Jinks v. Edwards(14), Wallis v. Hands(15), Zamindar of Vizianagram v. Behari(16), Meenakshi v. Chidambaram(17) and Manindra Chandra v. Narendra Chandra(18). The principle deducible from these decisions is of no assistance to the defendant.
17. Assume that, in the absence of a contract to the contrary the lessor is bound, on the lessee's request, to put him in possession of the property, and that the lessee has a good defence to an action for rent if the lessor is not able or willing to do so on the agreed date. Holgat v. Kay(19), Rangalal v. Lala Rudra Prosad(20), Bullon v. Lalit Jha(21), Hurish v. Mohinee(22), Munnee v. Campbell(23) Shyama Proshad v. Tahi(24), Pemma Raju v. Secretary of State(25), Secretary of State v. Pemma Raju(26) and Narayana Swami v. Yenamali(27) it is plain that there has been no default on the part of the landlord, for Tagore did place the tenants, Banerjee and Sarker, in possession of all the lands of the tenure at the inception of the tenancy. There has thus been prima facie no breach of the implied covenant to give possession.
18. The defendant has made a desperate endeavour to escape from this insuperable difficulty, and, has strenuously contended that there is in law a fresh contract of tenancy constituted, whenever a tenure is brought to sale at the instance of the landlord, in execution of a decree for arrears of rent, so that in every such successive occasion be becomes burdened with an implied obligation to place the purchaser in possession, as if there was a new demise, the commencement of a new term.
19. This argument is manifestly fallacious and is based on a fiction which has no counterpart either in the actual intention of the parties or in recognised principles of law. When in execution of a decree for arrears of rent, a tenure is exposed for sale, the landlord does not intend that in the very process of sale, the tenure should be extinguished and a new contract of tenancy created between him and the successful bidder. Section 159 of the Bengal Tenancy Act contemplates a real sale, a real purchase, in other words a transmission, not an extinction of interest. The purchaser acquires the existing tenure, subject to protected interests, but with power to annul incumbrances thereon, by recourse to the prescribed procedure.
20. The landlord cannot consequently be called upon by the purchaser to place him in possession by expulsion of a trespasser who may have dispossessed the defaulter. If such trespasser has been in possession for less than 12 years, he has acquired no title and may be ejected by the purchaser by a suit; on the other hand if the trespasser has acquired a statutory title against the defaulter by lapse of time, he is still an encumbrancer and is equally liable to be ejected by a suit after annulment of the incumbrances: Ishan v. Saf atullah(28), Munsahali v. Arsa-dullah(29), Satish v. Munjctna(30), Bhushan v. Srikantha(31), Monmotha v. Anath(32) Gokul v. Debendra(33). When the purchaser is armed with such powers, there is no reason why he should have authority at his choice, to enforce-the intervention of the landlord. We are not unmindful that there is a dictum of Rampini, J. in Kali Nath v. Trailakhya(34) which, if generalised, may lend apparent support to the theory that by the sale of a tenancy a new contract is created between the auction purchaser and the landlord.
21. This view however was not adopted by Banerjee, J. in the case mentioned, and was expressly repudiated by Sir Francis Maclean, C.J, and Geidt, J. in Narendra v. Mmiraddi(35). The dictum was subsequently explained away by Rampani, J. himself in his judgment in the Full Bench Case of Lal Gopal v. Monmotha Lal(36).
22. We bold accordingly that in the case before us no new tenure was created, either on the 20th March, 1889 (when Singh purchased) or on the 16th April, 1894 (when the defendant purchased) and it is significant that on neither occasion did the purchaser request the landlord to give possession by the eviction of Chaudhuri.
23. Finally the defendant has urged, that the plaintiff is bound to allow abatement of rent for the Daskati Lands, as the relationship of landlord and tenant no longer subsists between the parties in respect thereof. This argument is based on the erroneous theory that the adverse possession of Chowdhury, which has extinguished the interest of the tenure holder, has also operated to extinguish the title of the landlord.
24. It is now well-settled that the possession of a trespasser, during the continuance of a lease does not become adverse against the lessor, the lessor is in possession by receipt of rent from his lessee; so long as such rent is not intercepted by a trespasser he cannot be said to have been dispossessed. Hazra v. Kuaja(37). This rule, first enunciated by Peacock, C.J, in Davis v. Kazee Abdul Hami(38) and shortly afterwards independently recognised by Norman, J., in Havanath Rev v. Indu Bhushan(39) was re-affirmed by Peacock, C.J, after elaborate discussion ‘in Umssh v. Raj Narain(40).
25. We may usefully re-call here the fol-lowing observations: The difficulties and dangers of Zamindars would be great, if they were bound to sue for declaration of right whenever they should discover any person other than the tenant in possession of any part of the land included in a putni tenure. They would have no means of knowing, and no means, that I am aware of, of compelling either the tenant or the trespasser to inform them whether the person in occupation was there with the consent of the holder of?the tenure or an under-tenure derived from him or merely as a trespasser. To hold that a grantor is bound to sue immediately a trespass is committed upon his tenant and that he will be bound by limitation if he does not sue within 12 years from the time that the trespass was first committed would open such a door to fraud and collusion between tenants and trespassers that the zamindar or owner when he seeks to enforce the payment of his rent would often find trespassers, whom in consequence of limitation, he could not get rid of, in possession of the greater portion of the tenure, and who as soon as he should have defeated the land owner by the plea of limitation, would probably share the spoil with the defaulting tenant. Instead of granting under-tecures, tenants would allow their ??? and relations to trespass upon their tenures, and thus protect them by limitation in the event of default in payment of their rent.
26. But even if the grantor could, during the existence of the under tenure, have maintained such an action against a trespasser upon his under tenant, it is clear that a purchaser of the under-tenure could not do so before the sale; and if not how could the grantor of an under tenure sell the under-tenure in the state in which he created it, if the purchaser is to be barred by limitation against persons who had encroached open the under-tenant.
27. The principle is applicable, as is clear from the judgment of Peacock, C.J whether the lease, during the subsistence whereof the dispossession of the tenant takes place, is for a term or is in perpetuity; sea Hareck Chand v. Bejoy Chand(41).
28. Reference may also be made to Bejoy Chander v. Kali Prasanna(42), Krishna Gobind v. Hari Charan(43), Sheo Sahay v. Luckmeswar(44), Sarat Sundari v. Bhoboo Prosad(45), Kiswar v. Kali Sanktt(46), and Baikantha v. Chaitanya(47) which are in harmony with the opinion expressed by Peacock, C.J, See also Thamman v. Maharaja of Viztanagara(48) Havnanma v. Dasandhi(49), Giridhavi v. Umaiajan(50).
29. The contrary view indicated in Brinda-ban v. Bhupal(51) and Prosanamoyee v. Kalidass(52), though supported by Sander Iyer, J. without the concurrence of Abdur Rahim, J. in Ambalavana v. Singaravtlu(53), cannot be justified on principle and is opposed to what is regarded by Lord Alverstone, C.J as well established doctrine in Walter v. Yalden(54). See also Poole v. Griffith(55).
30. The position may be different where there are successive leases for terms, and much may be urged in support of the contention that if on the actual termination of one of the leases, the landlord grants a fresh lease without exercising his right to sue for ejectment forthwith vested in him, time will begin to run against him from that date. Ahmadi v. Mahasay Tarak Begam Nath(56), Ecclesiastical Commissioners of England v. Rooe(57), Kenedy v. Woods(58).
31. There is plainly no real analogy between such a hypothetical case and the case before us where the dispossession took place during the continuance of a permanent lease. The adverse possession of Chowdhuri, however operative it may have been as against Banerjee, Sarkar, Singh and the defendant, can in no sense be treated as effective to extinguish the title of the plaintiff as landlord. There is thus no foundation for the view that the defendant has ceased to be the tenant of the plaintiff in respect of the lands of Daskati.
32. But if the claim for abatement is thus found beset with inextricable difficulties when examined from different standpoints, there is a still graver objection which must be surmounted before it can be successfully maintained. We have seen that on the 24th February, 1887 an amicable settlement was effected between Tagore, the landlord on the one hand, and Banerjee and Sarkar, the tenants, on the other; the result was that the tenants agreed that they would not be competent to apply for abatement of rent on any ground whatever in respect of the area of 4300 Bigkas found by measuiement to be in their occupation. This was clearly a valid agreement between the landlord and the tenants and the tenancy was thenceforth to be held subject to this contention. It was on this very ground that Morris and Banerjee, JJ. overruled the claim for abatement put forward by Nilkantha. Singh. The defendant as execution purchaser, does not in this respect, stand in a position of greater advantage than Nilkantha Singh who also had purchased at a at for execution of a rent decree. Thus apart from the principle of res judicata, the decision of Wilson and Field, JJ. in Ishan Chander v. Chandra Kantha(59) and of Morris and Banerjee, JJ. is Satyendra v. Nilkantha(60) treated as-precedents binding on this Court, to negative the claim for abatement. But as-we have also shown, the claim cannot otherwise be sustained on the merits.
33. The result is that these appeals must be decreed and the decree of the Subordinate Judge in each suit varied so as to allow the plaintiff rent of plots C.D and D-1 depicted in the map of the Commissioner as lands of Daskati included in the tenure held by the defendant.
34. The plaintiff will be entitled to the costs of, each of these appeals under the Letters Patent. The hearing fee will be assessed according to the srale, in the appeal valued above Rs. 5,000, and at Rs. 150 in the other appeal. In respect of the bearing before the Division Bench, as the cross-objection of the plaintiff in the first suit has succeeded, be will be entitled to the costs thereof and we assess the hearing fee at Rs. 150. As the appeal of the plaintiff in the second suit has also succeeded, he will be entitled to the costs thereof but no separate hearing fee will be allowed. The order of the first Court as to proportion are costs will be left undisturbed. But in determining the costs in all the Courts the amount as settled by this judgment will be adopted as the basis. The exact amount now decreed will be calculated by-the parties and inserted in the decree. Liberty reserved to speak to the Minutes.
Newbould, J.:— I agree.
Pearson, J.:— I agree.
35. Appeal allowed.