P L D 1952 Dacca 57 (PLP)

AHMAD, J.

‑This is an appeal under clause 15 of the Letters Patent from the judgment and decree of Sharpe J. of the Calcutta High Court. It stood transferred to this Court for hearing by operation of clause (3) to paragraph 13 of the High Courts (Bengal) Order, 1947. The appeal arises out of a suit for rent for the years 1344 to 1346 B. S. by the plaintiffs' landlords at the rate of one‑half of the produce. The plaintiffs' case was that originally six plots of land were settled with the defendant and that after some time the defendant orally surrendered three plots out of the six to the landlords and retained possession of the remaining three ; and the suit was with regard to the three plots which were so retained by the defendant. The defendant on the other hand alleged that the plaintiffs landlords forcibly dispossessed him from three plots of land out of the six and claimed that he was, therefore, entitled to suspension of rent. The Munsif who tried the suit held that the plaint was vague as to the point of time of the alleged relinquishment made by the defendant, and disbelieved the story of surrender. He held that the landlords forcibly dispossessed the tenant defendant ; and he also found that the lands which the land lords had taken away were of better quality than those left in the possession of the tenant. On this finding the Munsif held that it was a case in which there should be a total suspension of rent and dismissed the plaintiffs' suit. The plaintiffs thereupon appealed against the decision .of the Munsif, and the learned Subordinate judge, who heard the appeal, held as follows :‑ "There is no evidence that lands are of the same quality. On the contrary the evidence shows that the lands dis possessed are of superior quality than the remaining lands" ; and he agreed with the Munsif in holding that the landlords had dispossessed the tenant and could not claim rent after dispossession without returning the lands which were let out for cultivation. The learned Subordinate judge further found that the dispossession had taken place in the year 1346 B. S. He, therefore, modified the decree of the learned Munsif, allowed the appeal in part and decreed the plaintiffs' suit with regard to the years 1344 and 1345 ; .but dismissed the suit with regard to the year 1345 in which year dispossession had taken place. The plaintiffs landlords then filed a second appeal against the judgment and decree of the learned Subordinate judge, which was heard by Sharpe J. of the Calcutta High Court, sitting singly. Sharpe J. agreed with the lower Courts and held that it was a case of lump rental as there was no rate of rent mentioned and the rent was not payable at so much per bigha or acre. He also held that the tenancy was not divisible and following the decision in the case of Abhoy Charan Sen v. Hem Chandra Pal I L R 57 Cal. 137 and Mohim Chandra Banikya v. Sk. Karam Ali 33 C W N 501, held that the rule of suspension of rent applied to this case. The main ground on which Sharpe J. applied the principle of suspension of rent was that it was a case of lump rent, although incidentally he also rested his decision on the ground that the tenancy in this case was an indivisible one and also on the ground that deprivation of a portion of the tenancy would necessarily interfere with the enjoyment of the remainder. He also referred to the case of Srimati Sakhisona Dasi v. Pran Krishna Das 37 CWN 301, on which he relied and observed that that case was an authority for the view that even if it should be held that the rent is assessed at a rate per bigha or any other similar unit, there would still be ample justification for suspension of rent. So far as the question of lump rent is concerned, we think it is in some manner linked with the question of the indivisibility or otherwise of a tenancy. In the present case where the rent was fixed in kind at half of the produce without any reservation as to any maximum or minimum quantity by its very nature the rent would be liable to variation from year to year and according to the extent of land which the tenant actually chose to cultivate, or the quantity of produce that he raised by his labour. In these circumstances, we do not think that any inference can correctly be drawn in this case that the rent was lump rent. The case of Abhoy Charan Sen v. Hem Chandra Pal, (supra) on which Sharpe J. mainly relied was a case in which the tenant was dispossessed from 60 out of 500 odd bighas of land, which was let out at a lump rental of Rs. 415 per annum and it was held that the rule of total suspension applied. In that case Mr. Justice Mitter, who delivered the judgment, reviewed a large number of cases on the point and on an interpretation of the Privy Council case of Srimati Katyayani Devi v. Adhoy Kumar Das 33 C W N 1, reiterated the view that he had taken on the interpretation of the aforesaid Privy Council case in a previous case which he had decided sitting singly, namely, the case of Mohim Chandra Banikya v. Sk. Karam Ali (supra) the decision in which was upheld on a Letters Patent Appeal by Ghose J. and Mallick, J. The interpretation that Mitter J. put on the Privy Council case was ex pressed as follows : "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". He further amplified this view in the case of Abhoya Charan Sen v. Hem Chandra Pal (supra) with the following observation : "It does not matter in the least that the area from which the tenant has been dispossessed is a small area. The law does not encourage a landlord to dispossess the tenant from land in respect of which he has been granted a lease by letting it out again to a third person after the original demise had been effected. It may operate harshly in individual cases or in other words he held that the doctrine of suspension of rent was to be applied as an inflexible rule in all cases of dispossession where there is a lump rental. The next case relied upon alternatively by Sharpe J. was the case of Srimati Sakhisona Dasi v. Pran Krishna Das (supra). In that case Mukherji J. after reviewing the history of the doctrine of suspension of rent in its application to Courts in India from the earliest times deduced certain principles governing the cases of dispossession by landlords of tenants from portions of the demised lands and expressed these principles as follows : "As I understand these obser vations, they do not purport to lay any weight on the fact or of lump rental or rate of rent per bigha, but on the question whether the tenancy is in fact divisible into separate parcels separately and specifically assessed to rent and this in my opinion is the correct view to take of the matter". Mukherji J. then gave his opinion on the interpretation of the Privy Council case of Katyayani Devi v. Udoy Kumar Das (supra) which was entirely different from the interpretation put on that decision by Mitter J. Mukherjee J. has expressed his view as follows : "My own view is that Katyayani's case should not be interpreted as laying down anything beyond what it actually says. It says that in cases where the tenant has not been put in possession of part of the subject leased and the rent is a lump rent for the whole land leased treated as an individual subject, the doctrine has been applied ................the result in my opinion, being that what was meant was that .the doctrine has no application to a case where the tenant has not been put in possession of the whole land leased, but the stipulated rent is so much per bigha. I am clearly of opinion that their Lordships never intended to say anything in approval or disapproval of the applicability of the doctrine in cases of dispossession or eviction by the landlord". Then proceeding with the principles he had deduced from previous cases the learned judge observed as follows : "Thirdly, I am of opinion, that where dispossession or eviction by the landlord is found, no consideration whether the rental is a lump rental or a rental at a certain rate per bigha or acre enters into the question. The real test in such cases is ..............was it one indivisible tenancy and was there interference by the landlord with the due enjoyment of the premises or any part of them ? I think, however, that in deciding on this test, one may consider whether the tenancy consists of separate mauzas or parcels of land separately assessed to rent or whether the tenancy is in fact, and not in law only, divisible or indivisible. In other words, my view is that the mere fact that the tenancy is governed by one lease and so in law may be regarded as one tenure is not enough; what has to be seen is whether in fact the parcels are such that deprivation from one necessarily interferes with the due enjoyment of the others. This is a distinction which was clearly explained by Maclean C. J. and Banerjee J. in Haroo Kumari Chowdhurani v. Purna Chandra Sarbogya I L R 28 Cal. 188',. This last referred case was one where the rule of suspension of rent was applied to a case where rent at so much per bigha was fixed, and one of the grounds on which suspension of rent was ordered was stated as follows : "No man may be encouraged to injure or disturb his tenant in his possession, whom by the policy of the law he ought to protect and defend". This principle was based on the feudal system from which the doctrine of suspension of rent found its way into the common law of England. In the case of Hem Lall Dutt Sarkar v. Dhirendra Nath Roy and others 47 C W N 489, the Privy Council while dealing with the question of suspension of rent traced the history of this doctrine as it found its way into the Indian system. Thev stated the history of this principle as follows : "Not long after the High Court had taken the place of Sudder Dewani Adalat it is found applying to agrarian tenancies in Bengal principles applicable by the English common law to lands let at an entire rent, broadly speaking, that an eviction of the tenant from a part of the lands by title paramount gives rise to an apportionment, but eviction by the landlords from a part entails a suspension of the entire rent. Sir Barnes Peacok's judgment in Gopanund Jha v. Lalla Gobinda Pershad 12 W R 109 (1869). began this line of decisions with a quotation from the article "Rent" in Bacon's Abridgment, doubtless the seventh edition of 1832. The case was apparently one of eviction of the lessee from a part of the land demised by title paramount but the lessor had also taken the raiyats' rents for two years claiming that the lease was not binding. So far as the meagre report shows, the law as to eviction from a part by the lessor was not in point. But thereafter such English decisions as Morrison v. Chadwick (1849) 7 C B 266 and Upton v. Townend (1855) 17 C B 30, came to be followed in Bengal from time to time and there has been considerable repetition of doctrine to the effect that the rent issues out of every parcel of the land demised and that a landlord cannot apportion his own wrong .....The reason given is 'that no man may be encouraged to injure or disturb his tenant in his possession, whom by the policy of the feudal law he ought to protect and defend ..Dwelling on the difference between the conditions prevailing in the countryside in England and those in Bengal, their Lordships observed : "In these circumstances their Lordships think it impossible to require the Courts in Bengal as a matter of justice, equity and good conscience to follow such English cases as Neale v. Mackenzie (1836) 1 M & W

747. Their Lordships then made a distinction regarding a case where a landlord initially fails to put a tenant in possession of a portion of the demised land, in which case they held that the doctrine of suspension of rent should not be applied in Bengal. They, however, left the case open as to whether in a case of eviction of the lessee by the lessor from a part of the land irrespective of the amount of rent reserved being a lump sum or not, to be considered in future cases. From the observations of the Privy Council in these cases and the origin of the doctrine of suspension of rent we are of opinion that this doctrine can only be applied in this country as a principle of equity, justice and good conscience, and as such its application will be made to cases irrespective of the fact as to whether it is a case of lump rental or of rent of so much per bigha. In this connection we may refer to the case of Maharaja Jagdish Nath Roy Bahadur v. Surendra Prosad Lahiri 40 C W N 166, which was a case of lump rent and one in which the landlord had dispossessed the tenant from a small portion of the tenancy. The Court did not apply the doctrine of suspension of rent and ordered rent to be apportioned. It was held in that case that the doctrine of suspension of rent is not to be applied in this country in its rigid form, and should be applied as a rule of justice, equity and good conscience. If was also held that it was not just that in every case of a lump rental and dispossession from a part, the tenant was to be allowed to hold the other lands comprised in the tenancy rent free in perpetuity, even though the landlord be unable for some good reason to put the tenant in possession. It was further held in that case that the test to be applied was whether the tenancy was an indivisible tenancy and whether there had been interference by the landlord with the due enjoyment of the premises demised. Reference may also be made in support of our view on the principle of application of this doctrine to the case of Ashutosh Roy and others v. Indu Bhusan Sen Gupta and others 49 C W N 470, in which it was held that suspension of entire rent in the case of partial eviction by the landlord should be allowed only on grounds of justice, equity and good conscience. Applying the principle of equity, justice and good conscience to the facts of the present case, in which beyond proving that he was dispossessed of about two‑thirds of the land of the tenancy and of the better quality of land, the tenant defendant did not show f or attempt to show that by reason of this dispossession the beneficial enjoyment of the portion of the land left in his possession was interfered with, and he having failed to avail himself of the ordinary remedy available to him under the law, we do not think that it is a fit case in which the doctrine of suspension of rent should be applied. Incidentally, we do not also agree with the finding of Sharpe J., that from the mere fact of a compact block of land, two‑thirds, having been taken away leaving only inferior land for the cultivation of the tenant, there may be an inference that the practical effect of the deprivation was to interfere with the land left. The result, therefore, is that this appeal is allowed. The judgment and decree of Sharpe J. are set aside and those of the learned Subordinate Judge restored with this modification that there shall be a decree for the entire amount of rent claimed in the suit, which will be Rs. 185‑10‑0 as according to the finding of the Subordinate Judge. As the lower Court has found that the plaintiffs forcibly dispossessed the tenant from the land, we make no order as to costs. Each party will bear his own costs throughout. SHAHABUDDIN, C. J.

‑I agree. A. H. Appeal allowed.