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  • sec. 108A(b) of the Transfer of Property Act
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  • sec. 108A(b) of the Transfer of Property Act
Smart Summary

Factual and Procedural Background

The Plaintiff sued to recover Rs. 2,790-3-1 S. as rent with ceases and interest for the years 1306 to 1309 under a potta and kabuliyat dated 2nd Joista 1302. The potta purported to lease to the Defendant land described in Pargana Rangdia (a putni taluk) estimated at about 800 bighas, of which 150 bighas were stated to be uncultivable (garlaik). The potta specified particular areas (lots of about 275, 190 and 185 bighas) and provided for stepped rent on part of the land and full rent from 1308 on the whole.

It was nevertheless conceded that the Defendant was actually in possession of about 799 bighas, but both lower Courts found, on examination of the boundaries (in particular the northern boundary being the Poddar's Road), that the boundaries in the potta would include additional plots (Ha and Hb), so that the total demised area actually included by the boundaries was roughly 1,500 bighas. The Plaintiff alleged that he had not put the Defendant in possession of the whole demised area and the Defendant subsequently declined to pay rent after certain payments made up to 1305 (with two specific later payments recorded). The Plaintiff filed suit on 14 April 1903. Both lower Courts dismissed the Plaintiff's suit on the ground that until the Defendant was put in possession of the whole property demised (found to be about 1,500 bighas), rent was suspended and the Defendant was not liable. The Plaintiff appealed.

Legal Issues Presented

  1. Whether, when a leased deed describes boundaries that on measurement include a larger area than the stated area, the boundaries govern (i.e., does the deed pass the land within stated boundaries even if area differs).
  2. Whether the Defendant, having been allegedly not put in possession of part of the demised land, is wholly absolved from paying rent for the lands he does occupy, or whether he remains liable for rent for the portion actually in his possession.
  3. Whether the circumstances here amount to an eviction or dispossession by the Plaintiff (or by his procurement) such that suspension of rent is justified under principles drawn from English authorities.
  4. Whether, if part occupation continues, the Plaintiff's suit for rent can be maintained (or whether the claim would be converted improperly into an action for use and occupation/compensation).

Arguments of the Parties

Plaintiff's (Appellant's) Arguments

  • The Plaintiff sought rent for 1306–1309 under the potta and argued he was entitled to recover unpaid rent for the lands demised.
  • It was argued (on appeal) that the Defendant was in possession of all lands leased to him (i.e., that the stated area of 800 bighas should be accepted) and that the lower Courts erred in treating plots Ha and Hb as within the lease.
  • The Plaintiff argued that even if some of the demised land was not put into possession, the Defendant, having retained occupation of the remainder and having paid rent after the disputed lease to a third party, could not hold those lands rent-free indefinitely; thus rent for the part in possession should be recoverable.
  • The Plaintiff disputed that the landlord's conduct amounted to wilful wrongful eviction or mala fide conduct justifying total suspension of rent.

Defendant's (Respondent's) Arguments

  • The Defendant objected to payment of rent on the ground that the Plaintiff had not put him in possession of the entirety of the land demised (i.e., plots Ha and Hb were excluded from his possession), and so rent should be suspended until full possession was given.
  • The Defendant relied on authorities (including Dhunput Singh v. Mahomed Kazim Ispahain and related English-law principles) to contend that suspension of rent followed from eviction or dispossession by the landlord or by his procurement.
  • The Defendant asserted that there had been no personal dispossession by the Plaintiff but nonetheless maintained that the absence of possession of part of the demised land justified withholding of rent for the claimed period.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Herrick v. Sixby Principle of construction of a deed: the true construction is that which harmonises several provisions and most nearly expresses the intention of the parties. Cited to support the proposition that deed construction should reconcile provisions and reflect parties' intention; the Court referred to it when considering whether boundaries or stated area should govern, but accepted the lower Court's boundary finding while noting the rule.
Dhunput (Dhunbut) Singh v. Mahomed Kazim Ispahain Principles (derived from English cases) on suspension of rent consequent upon the eviction of a tenant by his landlord; landlord may be penalised where eviction is wrongful. Reliance was placed upon this case by the Respondent. The Court held the facts of the present case materially differed (notably no actual eviction properly so called and no proof of mala fides), and thus found the authorities inapplicable here; the Court also observed that a partial decree had been awarded in that case.
Harro Kumari Chowdhrani v. Purna Chandra Sarbogya Followed principles in Dhunput Singh concerning suspension of rent in eviction cases (as applied by the referring Court). Noted by the Court as a follow-up to Dhunput Singh; the present Court considered Dhunput and related cases but found them distinguishable on the facts and therefore not controlling.
Kali Prosanna Khasnabish v. Mathma (Mathura) Nath Sen Authority addressing the question whether withholding of rent is permissible where a tenant is prevented from taking certain parts of demised lands (held to be inequitable to allow no rent for lands admittedly held). The Court treated this case as distinguishable but observed that in Kali Prosanna the Lords thought it inequitable that no rent should be paid for lands admittedly held and that a decree was given to the plaintiff; the present Court cited it when supporting recovery of rent for occupied lands.
Stokes v. Cooper English authority cited (via Foa on Landlord and Tenant) suggesting that, where a tenant retains part occupation after dispossession of part, he may be liable to pay compensation for use and occupation. The Court referenced this authority to show that even under English law there is doubt whether a tenant could avoid liability for compensation for the portion retained; it supported the conclusion that the Defendant could be sued for rent for the lands he continued to occupy.

Court's Reasoning and Analysis

The Court's analysis proceeds in the following steps (drawing on the judgments of Chitty, J. and Vincent, J. as expressed in the opinion):

  1. Boundaries versus stated area: The Court accepted the lower Appellate Court's factual finding that the northern boundary of the demised land was the Poddar's Road and that, on the map, plots Ha and Hb fall within the deeded boundaries. The Court observed that while generally the boundaries in a conveyance are the true criterion of the land conveyed, the construction of a deed must harmonise its provisions and reflect the parties' intention (citing Herrick v. Sixby). Nevertheless, on the facts the Court accepted the boundary finding despite the surprising increase in measured area.
  2. No eviction properly so-called or proof of mala fides: The Court found that there was no sufficient evidence of actual dispossession by the Plaintiff; rather, the Plaintiff had not put the Defendant into possession of land over and above the 800 bighas. Crucially, there was no finding of wrongful or mala fide conduct by the landlord in leasing a portion to Rasik Lal Dutta; the overlap appeared to have arisen by careless statements of boundaries in the two pottas.
  3. Tenant's election and conduct: The Court emphasised that the Defendant entered into possession of 800 bighas and paid rent on those holdings for nearly four years, and even made further payments after the subsequent lease to Rasik Lal Dutta. The Court treated the Defendant's continued occupation of part of the demised property and partial rent payments as an election inconsistent with treating the whole tenancy as suspended indefinitely.
  4. Inapplicability of English eviction principles to excuse all rent: Although English cases on suspension of rent due to eviction were discussed (notably Dhunput Singh and related authorities), the Court concluded those principles were not applicable on these facts because there was no clear eviction, no proof of landlord bad faith, and because the tenant continued occupation and payments. The Court also questioned the wholesale transplant of English technicalities to local realities.
  5. Apportionment and remedy: The Court rejected the contention that apportionment (or claiming rent for the occupied portion) would convert the claim into one inconsistent with tenancy. The tenancy subsists as to the lands retained; the claim for rent under the lease (albeit in the nature of a quantum meruit for the occupied part) was permissible. The Court therefore treated the appropriate remedy as recovery of rent for the lands actually in the Defendant's possession, with specified deductions under the terms of the potta.
  6. Quantification: The potta itself specified the rent regime: full rent of Re. 1 per bigha from the outset on 68 b. 17 c. 8 ch.; the remaining 581 b. 2 c. 8 ch. to pay progressive rent culminating in Re. 1 from 1308. The Court noted uncertainty as to whether hazira and brahmottar lands had been excluded in measuring the 800 bighas. The Defendant admitted holding 32 bighas of brahmottar land, while the Plaintiff alleged only 14 bighas; to avoid further reference and delay the Court (with Plaintiff's pleader's consent) allowed credit for 32 bighas of brahmottar and exempted the Defendant from payment for the 150 bighas specified as uncultivable in the potta — a total deduction of 182 bighas. The balance found to be subject to rent was 617 b. 7 c. 10 ch. (i.e., the area in the Defendant's possession after these deductions) at the rates specified in the potta.
  7. Interest/damages: The Court declined to impose interest at 12% p.a. for the long period and instead awarded damages at the rate of 25% on the Plaintiff's claim. The Court also awarded proportionate costs in all Courts.

Holding and Implications

Core Ruling: Appeal allowed. The Plaintiff is entitled to recover rent for the land actually occupied by the Defendant after deducting 150 bighas (uncultivable) and 32 bighas of brahmottar land (total 182 bighas). For the balance — specifically 617 b. 7 c. 10 ch. — the Defendant must pay rent and ceases at the rates specified in the potta for the period claimed. The Plaintiff is awarded damages at the rate of 25% on his claim and proportionate costs in all Courts. The decree amount is to be ascertained in accordance with these directions.

Implications:

  • Direct effect on the parties: The Defendant remains liable to pay rent for the lands he occupies (after the specific area deductions agreed and allowed) and cannot withhold payment indefinitely on the ground that he was not put into possession of other lands included within the deed's boundaries. The Plaintiff obtains a decree for rent (quantified by area and rates under the potta) with damages and costs as ordered.
  • On broader law and precedent: The Court applied established principles (including deed-construction rules and the landlord's obligation to put a lessee in possession) while distinguishing English eviction authorities on the facts. The decision does not purport to create a new general precedent overturning established eviction-law principles; rather it applies existing principles to the specific facts and declines to treat the facts as equivalent to a wilful wrongful eviction that would justify suspension of rent in full.

This summary is strictly limited to the matters and language set out in the provided opinion and does not add facts or conclusions not present in the text.

    Annada Prosad Mukhopadhya v. Mathura Nath Nag Mazumdar

    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.

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    Annada Prosad Mukhopadhya v. Mathura Nath Nag Mazumdar
    (Apr 30, 1909)