This Second Appeal arises out of a suit for rent valued at 22 rupees. A preliminary objection was taken that no appeal lay, but we find that in both the Courts an issue was raised as to the amount of the annual rent and it was decided that the annual rent was 12 rupees. It is sought to be argued on the authority of the case in Baidya Nath Bahara v. Dhan Krishna Sirkar(1), that, there must be some contest upon the point, but the law is perfectly clear and so is that-decision, that it is only necessary that the Court should have decided the annual rate of rent whether directly or incidentally. In this case a direct issue was raised, so that there can be no doubt about the right of appeal.
The argument of the learned Doctor who appeared for the Appellant raised what is a new point in this country, although it was pointed out as long ago as 1881 by Mr. Justice Field in Pertab Chandra's case that such a defence might be taken to a rent suit in Bengal. The learned Doctor took the plea that in this case the Defendant had been evicted by a title paramount, by the Plaintiff's landlord, and that therefore he was not bound to pay any rent to the Plaintiff. Now, it has been laid down by the English authorities that to constitute a good defence in these cases three conditions must be fulfilled, the eviction must be from something actually forming part of the premises demised, the party evicting must have a good title, and the tenant must have quieted against his will. In this case the only difficulty was that there was no forcible expulsion, but this has been held by all English authorities to be unnecessary; all that is necessary is that the landlord should claim the rent and the tenant on such notice attorn to him because he is not entitled to resist the claim. We need only refer to the cases which are quoted in Foa on Landlord and Tenant, 4th Ed., p. 169. Hill v. Saunders is the leading case, and we entirely agree with the legal doctrine which is here laid down and which is in accordance with common sense. But we find that as a matter of fact no such eviction by title paramount was ever pleaded by the Defendant, and that on the contrary he pleaded something totally different. He made an averment which has been found to be false that he had held this land under an amaldari for 12 years at a rent of 6 rupees. Now, it does appear that in the year 1894 there was some talk of a amaldari but the learned Judge has said that there is no proof of it, and that even if it was given it would not help the Defendant as it was an unregistered document. Be that as it may, this is not the case which the Defendant has to prove.
He has to prove that in the year 1318, after he had himself admitted to the Settlement Officer that the Plaintiff was his landlord the zemindar's amla came to him and put pressure upon him and so he had to attorn to the superior landlord who holds the title paramount. It is found by the learned Judge that as a matter of fact after he had admitted his tenancy before the Settlement Officer under the Plaintiff he was approached by the amla of the zemindar, but the treatment far from having been in the nature of pressure appears to have been in the nature of a bribe. He argues that they told him he would get his rent reduced to 6 rupees if he would give them a kabuliyat, whereupon he proceeded to give them a kabuliyat. We would be reluctant to hold that this falls within the English law of quasi-eviction. We think that the argument in this Court has been based upon the finding of the learned Judge about this settlement proceeding; and that nobody, least of all the Defendant, ever thought of this question of eviction by title paramount before the case came into this Court. The Defendant cannot, we think, be allowed to make a new case of this kind, and at any rate as far as the rent now claimed is concerned the case must fail, for the kabuliyat in favour of the paramount title was not executed till the year 1315.
The Appeal therefore is dismissed with costs.
Appeal dismissed.