The Judgment of the Court was as follows:—
This is an appeal by the Plaintiffs and arises out of a suit commenced by them for recovery of rent in kind for the years 1328 to 1331 B.S
The defence of Defendant No. 2 to the suit is that there ought to be a suspension of rent as he has been dispossessed from a portion of the holding by some of the landlords. The Munsif who tried the suit disbelieved the story of dispossession and gave judgment for the Plaintiffs. On appeal the lower Appellate Court remanded the suit “so far as it relates to the claim in respect of the year 1329-1331, for fresh trial, after a local enquiry by a commissioner as to whether any part of C.S dag 1066 has been in possession of the Plaintiffs or their co-sharers, as alleged by Defendant No. 2.”
A pleader commissioner was appointed to investigate if the Plaintiffs had encroached on a portion of the holding and he found that the tenant Defendants have been dispossessed from 1 katha 1 dhur out of their holding; the commissioner also found that the Defendants dispossessed the Plaintiffs from a portion of their own land. The Munsif after remand held that there had been a dispossession of the Defendants from a very small area and he decreed the suit in part.
An appeal was taken to the Court of the Subordinate Judge of Dacca and he found that the Plaintiffs admitted before the Commissioner that Defendant No. 2 was in possession up to the line joining station Nos. 1 and 2. He further found the Plaintiffs have erected a privy on a portion of the land coloured yellow in the Commissioner's map and that they throw refuse matter on the land and night-soil from the privy comes over a portion of the Defendants' land. The Subordinate Judge said:— “As I am satisfied on the evidence on the record that the Defendants have been dispossessed from a portion of the holding I hold that the rent should be suspended till the tenants are restored to the possession of the land upon the principle clearly defined in the case reported in page 492 Vol. 21 C.W Notes.” The evidence of the Defendants shows that Defendants have been dispossessed from an area which may be either 1/4th of a kani or of a 1/2 kani which is said to be approximately equivalent to a bigha. The Defendants also deposed that the Plaintiffs throw refuse on that portion, thereby rendering cultivation absolutely impossible. The Subordinate Judge after arriving at the findings to which I have referred dismissed the Plaintiffs' suit for rent.
The Plaintiffs have appealed to this Court. It has been contended on behalf of the Appellant that there has been no proper reversal by the lower Appellate Court of the finding of the trial Court that there has been no dispossession by the Plaintiffs. It has also been urged that the dispossession by the Plaintiffs was not of such character or extent as to attract the principle of entire suspension of rent. It is not disputed in this case that the rental was a lump rental and not at so much aris of paddy per bigha. Plaintiffs who are co-sharer landlords to the extent of 6 annas share (remaining 10 annas share belonging to the other pro forma Defendants) allege that their collections are separate and that the Defendant tenants did not deliver paddy which was due to be delivered to them in their share. With regard to the ground urged, viz. that there has been no proper reversal of the finding of the first Court on the question of dispossession I think there is no substance in it, for the lower Appellate Court has found on an examination of the evidence that the Defendants had been dispossessed from a portion of the holding. That finding is binding on me in second appeal. The evidence shows that the dispossession has been from at least 1/4th of a kani, i.e, nearly, 5 kathas in a holding which is said to be about 2 bighas in area. This is a substantial dispossession and as the rental was a lump rental the principle laid down by their Lordships of the Judicial Committee in Katyayani v. Udoy applies. In that case their Lordships of the Judicial Committee said:— “The doctrine of suspension of payment of rent, where the tenant has not been put in possession of part of the subject land, has been applied where the rent was a lump rent for the whole land leased treated as an indivisible subject. It has no application to a case where the stipulated rent is so much per acre or bigha.” As I read this case where there is lump rental and there has been a dispossession from a part of the holding it is the view of their Lordships that the entire rent must be suspended.
The Munsif agreeing with the Commissioner found that there has been dispossession of Defendants from about 1 cottah 1 dhur of land of dag 1066 which was leased, to the Defendant. But the Commissioner found that the Defendant encroached on some other plot of Plaintiff's land to the extent of 1 cottah and from this the Commissioner and the Munsif thought that the encroachment on the demised premises was only to the extent of 1/20th dhur. The Subordinate Judge was right in pointing out that the question of encroachment by the Defendant on some other land of the Plaintiff was not raised by the Plaintiff and the Munsif and the Commissioner made a new case for the Plaintiff in considering this act of the Defendant in encroaching on some other land of the Plaintiff as having a bearing on the question of Plaintiff's dispossession from the demised premises. Indeed it seems to me that the question of encroachment by the tenant on some other land of the landlord is foreign to and is not relevant to the controversy as to the extent of dispossession of the Defendant by the Plaintiff from the demised premises. The Subordinate Judge did not accept the Commissioner's boundary line between Plaintiff's dag 976 and Defendants' dag 1066. He found the ridge dividing the two plots to be the boundary between the two plots and that the Plaintiffs admitted that the Defendants were in possession up to the line joining stations 1 and 2. He found on the evidence that the dispossession was from a portion of the holding and the evidence shows that the dispossession was ½ kani in an area of 1¼th kani. I think this was dispossession of such a substantial portion of the disputed area as entitled the Defendant to suspension of rent in a case where the rent was a lump rental of 3 aris (each ari=2 mds.) of paddy.
The learned Advocate for the Appellants argued that there ought to be proportionate abatement of rent. It has, however, been held in this Court for a long series of years that in the case of lump rental, there ought to be suspension and not proportionate abatement of rent. On the 14th May 1869 Sir Barnes Peacock, C.J, referred to the following statement of the law in Bacon's Abridgement Tit. Rent (M) “where a lessor enters forcibly into part of the land, there are variety of opinions whether the entire rent shall not be suspended during the continuance of such tortious entry, and it seems to be the better opinion and the settled law at this day that the tenant is discharged from payment of the whole rent till he is restored to the whole possession, that no man may be encouraged to injure or disturb the tenant in his possession, whom, by the policy of the law, he ought to protect and defend.”
The principles to be gathered from the earlier cases is that if even the landlord dispossesses the tenant from a portion of the demised premises there should be no apportionment of rent, the whole rent being equally chargeable on every part of the land demised. See Dhunput v. Mahomed Kazim . In the case of Hara Kumari v. Purna Chandra (3), Sir Francis Maclean, C.J, and Mr. Justice Banerjee extended the principle of suspension of rent to a case where the tenure was held under a lease which reserved rent at a certain rate per bigha applying the principles laid down in the English and Indian cases referred to in the case of Dhunput v. Mahomed Kazim . In view of the decision in Katyayani v. Udoy to which I have referred, this decision cannot be held to be good law now. In Annada v. Mathura , Mr. Justice Chitty for the first time questioned how far the technicalities to be found in English law should of allowed to affect the relations of landlord and tenant in this country. Even in 1919 in the case of Manindra v. Narendra (5), Mr. Justice Fletcher with whom Mr. Justice Cuming concurred held following the case of Neale v. Mackenzi (6), that where the landlord having let out a portion of a land to an earlier lessee lets it out again to a subsequent lessee and fails to deliver to subsequent lessee possession of the entire land leased to him the entire rent is suspended. Mr. Justice Fletcher pointed out in that case that the case of Neale v. Mackenzie has always been considered good law and with reference to the argument that the decision of the English Courts should not be applied to the system of law in this country observed as follows:— “But the rule that rent is suspended on account of the dispossession of the tenant by the landlord from a portion of the holding has been recognised in a number of cases in this Court and, in my opinion it is not open to question now.” It was in this state of the authorities that the matter came up for consideration before their Lordships of the Judicial Committee in Katyayani v. Udoy , and their Lordships said in the passage already quoted that:— “The doctrine of suspension of payment of rent where the tenant has not been put in possession of part of the subject leased, has been applied where the rent was a lump rent for the whole land leased treated as an indivisible subject.” In my opinion these observations recognise the rule laid down by the Indian decisions that where the rent is fixed in a lump there would be suspension of rent on the ground of dispossession of the tenant by the landlord from a part of the demised premises. In the case of Susil v. Rajani , Mr. Justice B.B Ghose and Mr. Justice Roy thought that these observations of their Lordships were no authority for the proposition that there should not be any apportionment in any case of dispossession by the landlord of the tenant from a part of the demised premises, where the rent is a lump rental. With great respect to the learned Judges I am unable so to read the decision of their Lordships of the Judicial Committee. As I read the judgment their Lordships intended to lay down that the rule of suspension of rent would apply in the case where the rent was a lump rental and not to a case where the rent was so much per bigha. Besides the observations of B.B Ghose and Roy, JJ., are obiter as they were made in a case where the rent stipulated was at the rate of Rs. 1-10-0 per bigha. It is also to be noticed that Mr. Justice B.B Ghose in an earlier case Bisweswar v. Kali Charan expressed himself thus:— “It is true the rule of suspension of rent on account of eviction by the landlord of the tenant from a portion of the demised premises has been adopted in this Court in a series of cases and it is too late to question the adoption of that rule in our Court now.”
The true rule is laid down in the case of Sajjad v. Trailokya (9), a decision to which I was a party where the learned Chief Justice said: “But the doctrine of suspension of rent depends solely upon this that the rent due is an entire sum in respect of the land demised. If, therefore, the tenant is not given occupation of the whole of the land demised, the landlord has no right to the entire rent and unless he has a right or some equity to an apportionment he can recover nothing on the contract. But the whole basis of the doctrine is that rent due is one entire sum,” I can find no right or equity in this case in favour of Plaintiffs so as to entitle them to an apportioned rent.
I think the lower Appellate Court has taken the right view and this appeal must be dismissed with costs.
P.C