Chitty, J.:— This appeal arises out of a rent suit. The Plaintiff sues to recover Rs. 2,790-3-1 S. as rent with ceases and interests for the years 1306 to 1309, under a potta and kabuliyat, dated 2nd Joista 1302, and executed by himself and the Defendant respectively. The land leased to the Defendant is described as Pargana Rangdia a mehal bearing Towzi No. 163 in the district of Khulna, constituting a putni taluk, of which the Plaintiff claims to hold exclusive possession.
By the potta, land was estimated at about 800 bighas, 150 of which were regarded as garlaik or unfit for cultivation. For 68b. 17c. 8ch. the Defendant agreed to pay from the outset the full rent of Re. 1 per bigha and road-cesses at half anna in the rupee.
The balance of 581b. 2c. 8ch. he was to hold rent-free from 1302 to 1304, and from 1305 he was to pay a progressive rent upon it commencing at 4 annas per bigha and culminating from 1308 in the full rent of Re. 1 per bigha. The 560 bighas are described as remaining after deducting about 150 bighas of unculturable land from about 800 bighas of nonitati or, all sorts of mathan, khal, khandak, hasil, and patit lands, with the exception of hazira and brahmottar lands. The potta provides that whenever any quantity of land in the mehal should be found to be more on measurement, the Defendant should pay a proportionately higher rent. If it should be found to be less he was to get a proportionate reduction. The schedule to the potta gave the boundaries of the property in three lots measuring about 275, 190, and 185 bighas respectively. It is conceded that Defendant is in possession of 799 bighas, 7c. 10ch. of land, that is to say, to all intents and purposes, of 800 bighas, the amount mentioned in the potta. It has, however, been found by both the lower Courts that the boundaries as given in the potta, having special regard to the northern boundary, the Poddar's Road, would include a much larger area of about 1,500 bighas in all. Speaking from the map attached to the paper-book, Defendant has possession of plots A.C.D The boundaries would include also Ha and Hb to the north. It further appears that in Ashar 1305, Plaintiff granted to one Rasik Lal Dutta, his Naib's nephew, a potta of 350 bighas of land to the north of that leased to the Defendant. It is said that under that potta the lessee has actually possession of nearly 1,000 bighas, from which it is argued that there would be nothing strange in Defendant being entitled to 1,500 bighas under a potta which mentioned 800. Defendant duly paid the prescribed rent up to the end of 1305. It is noticeable that at least two payments, of Rs. 25 on 21st Pous 1305, and of Rs. 100 in 1307 were made after the lease to Rasik Lall Dutta. Defendant then objected to pay rent on the ground that Plaintiff had not put him in possession of all the land demised. Plaintiff accordingly on 14th April 1903 filed this suit. Both the Courts below have concurred in dismissing Plaintiff's suit in toto on the ground that unless and until Defendant is put in possession of the whole property demised, which they find to measure about 1,500 bighas, there must be a suspension of the rent and Defendant is in no way liable to Plaintiff. The only question for our determination is whether this view is correct. We must, I think, accept the finding of the lower Appellate Court that the northern boundary of the land demised to Defendant was the Poddar's Road, in other words, that plots Ha and Hb should be included in his land making altogether 1,500 bighas, although it is at first sight somewhat startling that the land which the parties calculated roughly, no doubt, at 800 bighas should turn out to be nearly double that amount. It is true that speaking generally the boundaries given in a conveyance are the true criterion of the amount of land conveyed. It is not however an absolutely hard and fast rule. The true construction to be put upon a deed is that which will as far as is possible being its several provisions into harmony with one another and express most nearly the intention of the parties [see Herrick v. Sixby(1)]. Here the learned Subordinate Judge is constrained to admit (1) that the question of boundaries in the Sunderbans is always an uncertain one and (2) that in this particular case if the northern boundary be taken as the road, which both Courts find to be the Poddar's Road, then the western boundary will be different from that given in the potta. In these respects the finding is open to criticism. But accepting it, as we do, I cannot agree with the conclusion of the lower Courts that Defendant is altogether absolved from payment of rent. Much reliance was placed by the Respondent's Counsel on the case of Dhunput Singh v. Mahomed Kazim Isbahain. In that case after discussing the English cases bearing on the question of suspension of rent in consequence of the eviction of a tenant by his landlord, their Lordships deduced certain principles, the correctness of which I do not wish to dispute. That case was followed in Harro Kumari Chowdhrani v. Purna Chandra Sarbogya, and distinguished in Kali Prosanna Khasnabish v. Mathma Nath Sen. Each case however must be decided upon its own facts and I think that the facts of the present are so very different from the facts of the case of Dhunbut Singh v. Mahomed Kazim Isbahain as to make that case inapplicable here. In the first place there was here no eviction or dispossession properly so called. Nor did the Defendant at the commencement ever allege it. (See para. 2 of his written statement.) The finding of the Sub-Judge is explicit on the point. “There is no sufficient evidence,” he says “of the actual dispossession, but it is a fact that it was Defendant's leasehold, but he was not allowed possession of the land.” All that can be said is that the Plaintiff did not give the Defendant possession of land over and above the 800 bighas, though more was included in his lease. Secondly, Defendant entered into possession of 800 bighas and for nearly 4 years paid rent in the terms of the potta—what is more, he went on paying rent even after he found that he was not to have this extra land. Now by law the lessor is bound to put the lessee in possession of the land demised. That is the general law, apart from sec. 108A(b) of the Transfer of Property Act which does not apply to this case. If he fails to do that, the lessee may say “very well, I will surrender my lease” or he may take steps to enforce the contract against the lessor. He cannot, I think, say as he tries to say in this case that he will hold what land he has in possession (which after all is the exact area by measurement that he contracted for) but will hold it rent-free for all time. If knowing that the lessor cannot put him in possession of the remaining land demised, he keeps what he has got, it appears to me contrary to all principles of justice, equity and good conscience that he should not pay rent for it. It was argued that there could be no apportionment because the effect of that would be to convert the Plaintiff's suit, which is one for rent under the lease, into a suit of another, and inconsistent character, namely, one for compensation for use and occupation, a suit which negatives the existence of a tenancy, I do not think that there is any force in this contention. The tenancy is still subsisting and the claim is for rent under the lease, though in the nature of a quantum meruit It is to be observed that the rent now due from the Defendant for the land in his possession is very nearly the actual sum contemplated by the lease. If he were to get possession of the other 700 bighas, the rent would be very largely increased. I do not propose to enter upon an elaborate discussion of the English cases. It may be questioned how far the technicalities to be found in the English law should be allowed to affect the relations of landlord and tenant in this country. In one respect the principle underlying the English decisions appears to be inapplicable to the present case. Eviction is regarded as a wrong done by the landlord to this tenant, for which the former is to be penalised. Here not only as I have said was there no eviction properly so called, but there is no proof of malâ fides on the landlords' part. It may be that by a careless statement of boundaries in the two pottos lands which should be included in the Defendant's holding are also included in those of Rasik Lal Dutta. But that is all that can be alleged against the Plaintiff on the fact of this case as admitted and as found by the lower Appellate Court. I think that the Defendant has no defence to the Plaintiff's suit for rent. The only point remaining for determination is the precise amount of the Defendant's liability. Under the potta it is clear that he was to pay the rent at Re. I per bigha from the outset on 68b. 17c. 8ch. with road-ceases at 5 anna in the rupee. The rent and ceases due in respect of the remaining 581b. 2c. 8ch. are also clearly stated in the potta—what is not quite clear is from what the area of the hazira and brahmottar lands is to be deducted. We find that Defendant admits to holding 32b. of brahmottar land and no hazira land among the 779b. 7c. 10ch. in his possession. The Plaintiff puts it at only 14b. of brahmottar. In order to avoid a reference and further delay, I propose (and to this the Plaintiff's pleader consents) to give Defendant credit in the present suit only for the 32b. of brahmottar land, and to hold him exempt in this suit from payment of rent for the 150b. as specified in the potta and 32b. brahmottar land, which he says he holds, in all 182 b. For the balance, that is, for 617 b. 7 c. 10 ch. Defendant must pay rent and ceases at the rates specified in the potta. I do not think that it would be fair to tax Defendant with interest at 12 per cent, per annum for so long a period. I think that the justice of the case will be met if we award Plaintiff damages at the rate of 25 per cent, on his claim. I would therefore allow the appeal and pass a decree in favour of the Plaintiff for an amount to be ascertained as above with costs in proportion in all Courts.
Vincent, J.—This appeal arises out of a suit to recover rent for the years 1306 to 1309 on account of certain lands held by the Defendant under the Plain, tiff in a putni taluk of the latter in the district of Khulna.
The suit has been dismissed because both the lower Courts found that the Plaintiff had interfered with the possession of the Defendant in a part of the lands demised to him. Against this decision, the Plaintiff appeals and a number of points are raised on his behalf.
It is firstly argued that, in fact, the Defendant is in possession of all the lands leased to him and that the Courts below have wrongly found that plots Ha and Hb of the Commissioner's map, now in the possession of the Plaintiff are included in the Defendant's lease. It is further argued that, in the circumstances of the present case, as the boundaries of the lands leased to the Defendant cannot be accurately identified, the area stated in the lease should be accepted as a correct indication showing what lands were leased to the Defendant.
There is to my mind, little force in this contention. There is a finding of fact that plots Ha and Hb are included in the lands demised to the Defendant. The northern boundary of plot 3 of the lease is the Poddar's Road. The position of that road has been ascertained and, if the position assigned to it by the Commissioner and both the lower Courts be accepted, plots Ha and Hb would apparently fall within the lands leased to the Defendant. The learned pleader for the Appellant then urges that 800 bighas of land were leased to the Defendant and he is found to be in possession of 799 bighas odd excluding plots Ha and Hb and that, therefore, the Court should consider that he is in possession of all the lands leased to him. This contention cannot, however, be accepted; for, it has always been held in India for obvious reasons that, where there is a description of land in a conveyance or lease setting forth the boundaries and specifying the area, the land within the boundaries passes by the deed. In the present case, the boundaries have been ascertained and there is no reason why the lease should not be held to cover all the lands included within them. It is clear also from the wording of the lease that it was the intention of the Plaintiff to lease to the Defendant the lands included in the boundaries stated and, in the case of jungly lands in the Sunderbans, it is so difficult to survey lands that areas are always or nearly always entered by guess. I, therefore, think that there is no force in the argument of the learned pleader for the Appellant on this point. It may also be noted that, in the case of another lease of a similar character, an exhibit in this case, there is a misstatement of area of a far more serious character than in the lease, the subject of this suit.
It is then argued that, in any case, as the Courts below have not actually found that the Plaintiff personally dispossessed the Defendant from any of the lands demised to him and as the Defendant has continued to occupy the remainder of the land so leased, he should, at least, pay rent for the land in his possession and it is said that the cases in Dhunbut Singh v. Mahomed Kazim Ispahain and Harro Kumari Chowdhrani v. Purna Chandra Sarbogya, referred to in the lower Court's judgment were decided on principles of English law which are entirely inapplicable in this country. The learned pleader has further pointed out that the cases on which reliance has been placed by the lower Appellate Court are clearly distinguishable from the present case. There seems to me to be much force in many of these contentions. The cases referred to by the learned Subordinate Judge are cases in which a landlord is penalized for a wilfully wrongful act. This, as I understand it, is the principle on which the English law on the subject is based. In the present case, there is, if I correctly interpret the judgment of the lower Court, no finding that the action of the landlord was wrongful. There was a difference of opinion between him and the Defendant as to the actual lands leased out to the latter; and that is all that can be said. It seems, therefore, that it would be unfair to penalize the Plaintiff in this case in the manner adopted by the lower Courts. In the next place, the Defendant in this case has elected after the land in plots Ha and Hb were settled with the new lessee to retain possession of the rest of the lands demised to him and even to pay rent for the same. The dispossession occurred in 1905 according to para. 3 of the written statement. Nevertheless, after this date, the Defendant has continued to occupy the remainder of the lands leased to him and is apparently now in possession of them and he has also paid a portion of the rent for the years 1305 and 1306 according to the receipts. It is not now open, therefore, to the Defendant to allege that he cannot be made liable for the rent of any period after the date on which plots Ha and Hb were leased out to Rasik Lal Dutta. When this new lease was effected, it was open to the Defendant to repudiate the whole contract with the Plaintiff and to give up all the lands or to sue the landlord for specific performance of his contract or for damages and continue to occupy the rest of the property demised; but he cannot at the same time occupy for an indefinite period a large portion of the lands leased to him and refuse to pay rent for the same. Even, under the English law, it is open to doubt if he would not, under such circumstances, be liable to pay compensation for use and occupation [vide the case of Stokes v. Cooper(5)], referred to in Foa on Landlord and Tenant, p. 168; and certainly, in India, there appears to be no reason why he should not be sued for rent in the ordinary way: the more so as it is shown in this case that, since the lease to Rasik Lal Dutta, the Defendant has not only remained in occupation but has also paid rent to the landlord by which acts a tenancy of the lands in his occupation is clearly established.
Lastly, it has been argued that, in the present case, there was no direct eviction by the landlord but that all that was found amounted to this that the Defendant had been prevented from taking possession of plots Ha and Hb by a new lessee under the Plaintiff and that this would not entitle the Defendant to withhold the payment of rent [vide the case of Kali Pros anna Khasnabish v. Mathura Nath Sen] and it is probable that, if that case was rightly decided, this view is correct. It would appear very difficult to reconcile that case with the principles on which their Lordships acted in the case of Dhunput Singh v. Mahomed Kazim Ispahain. In the latter case, the principles of the English law were followed and, if the same principles be accepted in a case where the tenant is ousted by a new lessee under his landlord, it might reasonably, I think, be said that the eviction was by the procurement of the landlord [vide Foa on Landlord and Tenant, pp. 166 and 167). I am, therefore, not able to see very great force in this contention unless it be taken that it was not the landlord's intention in granting the new lease that the prior lessee should be evicted but only that the title in the land in dispute might be adjudicated upon in a suit between the two claimants. But having regard to the other points already dealt with, I think that, in any case, this appeal must succeed.
It is possible that, in the case in Kali Prosanna Khasnabish v. Mathura Nath Sen, their Lordships felt that it was in every way inequitable that no rent should be paid for lands admittedly held and, therefore, they gave the Plaintiff a decree and it is to be noticed that, even in the case Dhunput Singh v. Mahomed Kazim Ispahain, a partial decree was awarded to the Plaintiff, although really the rental in that suit was a consolidated rental of a putni tenure made up of various demands on particular villages.
In these circumstances, I am of opinion that the Plaintiff is entitled to recover rent from the Defendant for the lands occupied by him less certain deductions under the terms of the lease. The Defendant is entitled to deduct 150 bighas out of the area in his possession on account of uncultivable lands and possibly he is also entitled to a further deduction on account of hazira and brahmottar lands. The Defendant's pleader has filed a statement showing that there are actually no hazira lands in the area now in the occupation of the Defendant but that 32 bighas of brahmottar land are included in the said area. The Plaintiff's pleader consents that this area of the brahmottar land should be accepted for the purposes of the present case. The Plaintiff will, therefore, get a decree for rent of the balance of the area in the possession of the Defendant after deduction of 182 bighas at the rates specified in the lease for the period claimed with damages at 25 per cent, and proportionate costs in all the Courts.
It may be noted that the Defendant is, under his kabuliyat, liable to pay excess rent for any land found in his possession in excess of the area stated in the deed. It is, therefore, clear that the assessment of rent in this case was to vary with the area actually found to be included within the boundaries mentioned in the lease.
Appeal allowed.