Dalip Narayan Singh vs Suraj Narayan Missir and another

James, J.—This second appeal arises out of a suit for arrears of rent. The tenant, who is an occupancy raiyat, took the defence that he had been evicted at the instance of of the landlord from an area of about 40 bighas contained in his holding. The Subordinate Judge found that the defendants had been evicted from an area of two bighas at the instance of the landlord: for the remainder of the area from winch they had been evicted, he failed to find that the eviction was at the landlord''s instance, not permitting tire defendants to prove this owing to his misreading of their written statement; but since the landlord had evicted his tenant from the area of two bighas he allowed suspension of rent and dismissed the suit.

The simple question for decision is whether the Subordinate Judge in thus allowing suspension of rent committed any error of law. The learned advocate for the appellant suggests that in this case the rent was at a certain rate per bigha and not a lump rental but the plaint states that, the defendants have 122 bighas odd at an annual rent of Rs. 250, and it does not appear to have been suggested in the Courts below that the rental was anything but a lump rental. The learned advocate suggests that we should at this stage take into evidence certain bahis of the landlord wherein this holding is said to be described as held at varying rates per bighas but whatever the value of this evidence might have been, if it had been tendered at the proper time, it cannot be taken at this stage, where we have only to decide whether the Courts below property applied the law to the facts found in the evidence before them. The learned advocate suggests that the rule by which the suspension of rent is allowed, if a tenant is evicted from a portion on of his holding, can only be applied where a tenant holds under a lease governed by the Transfer of Property Act but it is only necessary to refer to the case of Dwijendra Nath Ray v. Aftabuddi Sardar, 1917 Cal 177 = 39 IC 209, where in discussing the correctness of an entry made in the record-of-rights, the learned Judges remarked:

The true position is that the eviction of the tenant, whether from part of the demised premises or from the whole, entails a suspension of the entire rent, while the eviction lasts, whether the tenant remains in possession of the residue or not.

The learned advocate suggests that there is no hard and fast rule by which suspension of rent must necessarily be allowed when a tenant has been evicted from a portion of his holding, but the question is whether the learned Subordinate Judge has committed an error of law in allowing suspension of rent in this case. That question must be answered in the negative; and indeed it must be said that the course taken by the learned Subordinate Judge was the correct course in the circumstances.

I would dismiss this appeal with costs.

Macpherson, J.

I agree. I should like to add an observation. It would be disastrous in this province if the doctrine of suspension of rent as applied to a tenancy with a lump rental should be whittled down. And even in the very improbable event that it could be shown that the land of this or any other long-standing in this province is held at so much per bigha, it would generally not be in accordance with equity to decree the rent for the balance of the annual rental after deducting the proportion of rent representing 2 bighas (or 40 bighas as the case may be), of which the landlord has dispossessed the raiyat. The statement of their Lordships of the Judicial Committee in Katyayani Devi v. Udaya Kumar Das, 1925 PC 97 = 88 IC 110 = 52 IA 160 = 52 Cal 417 (PC): on which is based the contention that proportionate rent should be decreed in such cases, does not really support the claim. It is to be read with reference to the case under the consideration of their Lordships in which the lease of 1433 (or even 1720) acres at so much per bigha had been given in 1878 including, apparently by mistake, a proportionately small area of 61 acres, to which a third party (actually the appellant''s husband) had established paramount title dating from 1875. There is a wide difference between such a case and the ordinary dispossession by the landlord of an old established raiyat from a portion of his holding. In the latter case a practice of mere apportionment of the rent could not fail to occasion grave disquiet. The value of such a tenancy often depends upon enjoyment of the whole of it, and it might well be that if landlord dispossessed his tenant of a comparatively small but important part of the tenancy the value of the latter would so deteriorate that mere non-realisation of the proportionate amount of rent would be an entirely inadequate compensation. It would be the same if the landlord dispossessed the raiyat of a large slice or of the best lands with the result that the holding became uneconomic. Perhaps the sound course is to determine what is equitable in the particular case, and that might range from the apportionment of rent per bigha where the dispossession is trivial or slight, in a rapidly rising gradient to entire suspension where the interference with the enjoyment of the tenancy is considerable. For instance if in the present instance the rent per bigha could have been ascertained and the landlord was found to have dispossessed the tenant of 40 bighas out of 122 bighas contained in the holding, entire suspension of rent could not be held to be unreasonable.