Sheo Pratap Singh and Others vs Tribeni Tewari and Another

Ray, J.—This is a plaintiffs second appeal in a suit for realisation of arrears of bhaoli rent with respect to 15 kathas 2 dhurs of land for the years 1860 and 1351 in respect of plots Nos. 327 and 328 only. The defence case is that the holding consisted of three plots 326, 327 and 328 with an area of 1 bigha, 6 kathas and 8 dhurs, and that the plaintiffs by establishing direct relationship with their under-raiyat in respect of plot No. 826 by executing a patta in her name have either dispossessed them or interfered with their possession of a part of the holding. They, therefore, claim that until this eviction or interference lasts, the entire rent will be suspended.

The trial Court reached the conclusion that there was no material before him that plot No. 826 formed a part of the defendants'' holding. In the alternative, he held that the principle of suspension of rent did not apply. The reason assigned by him was that the rent claimed was not indivisible in the sense that it was'' leviable in respect of every inch of the holding.

By the lower appellate Court the settle, mentkhatian was received as additional evidence. In the result, he came to a finding that there was eviction of the tenants defendants from a part of the holding. In this view, he applied the principle of suspension of rent. This resulted in whole sale dismissal of the plaintiffs'' suit. Hence, this second appeal.

For the purpose of this appeal, it has to. be taken as a fact that plot No. 826 formed a part of the holding. It is also well settled that the plaintiffs having directly engaged with the under-raiyats of the plot in question, the defendants suit for recovery of rent against the latter I was dismissed. This amounts to either eviction from or interference with possession of the tenant from a part of the holding. With this background it has to be considered how far the decision of suspension of entire rent is justifiable. The judicial pronouncements on the point can be divided into several groups. One group consists of cases in which the landlord fails to deliver possession to the tenant of the entire land settled from the very inception. The second group will be cases in which there has been subsequent dispossession by the landlord of a part of the holding. As between these classes of cases again there may be further division on the basis Whether the rent payable is a lump rental in respect of the lump area,, and, therefore indivisible, or whether the rent can be apportioned on account of its having been settled at a particular ratio to area. With regard to relation between the rent and the holding, the present suit can be considered to fall into the latter class on account of its nature, that is, bhaoli. In one sense at least, no doubt, the distinction seems to be very artificial. I will illustrate myself by referring to the circumstance that in case of fixation of rent at a rate per bigha or per acre or for any other standard area the landlord is entitled to hold the entire holding answerable for any amount of arrear. It cannot be said that an area of the holding proportionate to the arrear of rent calculated at the rate of the assessed rent is only responsible for the arrear. But, however, the distinction is understandable in the sense that the landlord''s misdeed or partial eviction or interference can be proportionately punished by apportionment of rent between the area still in possession of the tenant and the area wrested from him. This seems to be the only view-point of the distinction. Keeping that in view, the principle of suspension of entire rent does not apply to the case of bhaoli rents. The apparent divergence in principle applicable to different classes of cases should be taken to have been set at rest by the decision of their Lordships of the Privy Council in the case of AIR 1925 97 (Privy Council) . This case lays down:

The doctrine of suspension of payment of rent, where the tenant has not been put in possession of part of the subject leased, applies where the rent is a lump rent for the whole land leased treated as an indivisible subject. It has no application to a case where the [stipulated rent is such per acre or bigha.

In the case Sajjad Ahamad Choudhuri and Another Vs. Trailakya Nath Choudhuri and Others, . Rankin C.J. said:

But the doctrine of suspension of rent depends solely upon this that the rent due is an entire sum in respect of the land demised. If, therefore, the tenant is not given occupation of the whole of the land demised, the landlord has no right to the entire rent and, unless he has a right or some equity to an apportionment, he can recover nothing on the contract. But the whole basis of the doctrine is that the rent due is one entire sum. In this case, the original tenancy is said to have been for 25 bigbas 19� cottas. The land of which the tenant has had actual occupation is 21 bighas 5 cottas. The decision of the Settlement Officer was that the fair rent for 21 bighas 5 cottas was Rs. 18, this being an enhancement upon'' the rent of Rs. 15 for the original 25 bighas. If, therefore, this question depends upon any'' one proposition that proposition is this whether the tenant is able to day and after the Settlement Officer''s, decision to say that he holds 25 bighas at an entire rent. It appears to me that unless we are for set aside the; Settlement Officer''s decision and give no effect to it at all, it must be held that in respect of the 21 bighas it. has been found that the fair and equitable rent, is; Rs. 18 in other words, the entirety of the original rent is inconsistent with and has been destroyed by the finding of the Settlement Officer.

It has to be borne in mind that in granting apportionment of rent in favour of the landlord as against the claim of suspension of the: whole rent, some equity in favour of the landlord has also to be taken into consideration. In this case it is admitted that the tenants split up the holding into two and let out a part of it to an under raiyat on contract of bhaoli rent. An occupancy raiyat has always a limited right of sub-letting. A landlord who is entitled to bbaoli rent is entitled to the remedy of appraisement of the standing crops. The defendants by-introducing a third person into a part of the holding deprived the landlord of this right. They transferred a part of the holding at a time when the occupancy holding was non transferable without the landlord''s consent. This in my view, creates ah equity in favour of the landlord in claiming apportionment of rent, not withstanding the interference with the tenants'' possession, being forced to have recourse to it for the security of realisation of rent. In my View, the principle of apportionment of rent is applicable in this particular case.

Before concluding the judgment, I should refer to several decisions cited before me by the'' counsel for the respondent. Two of the cases: cited are of this Court: Sham Narayan Singh v. Baku Chandra Sekhar Prasad Singh AIR 1917 Pat. 34 and Bhune shwar Nath Pandey v. Gudar Nath Panaey 17 P.L.T. 356. The latter is a case of lump rental and is, therefore, not applicable. The former simply defines the general principle in; the following terms, namely,

If a landlord evicts his tenant from a portion of his holding he shall recover no rent for any part of the-holding until he has restored to him the land which he has forcibly taken. In other words, where there has been diminution of the holding by dispossession by landlord, there can be no apportionment of rent

and does not discuss about the cases to which the principle of apportionment of rent applies. From the report this also appears to be a case of where the rent was paid in lump and was, therefore, indivisible. The authority of this case; however, should be taken to have been modified by the Privy Council case, already referred to.

The respondents'' learned Counsel also invited any attention to several cases of the Calcutta High Court, namely: Sarada Prosad Bhattacharjee v. Ram Monmotha Nath Mitter 19 C.W.N. 870, Dwijendra Nath Ray Chaudhury v. Aftabuddin Sardar AIR 1917 Cal 177 and Sarip Jan Bibi v. Aftabuddin Mian 13 CRILJ 115. These are all cases before the decision of Privy Council. I shall deal with these cases one after the other. In Sarip Jan Bibi v. Aftabuddin Mian 13 CRILJ 115 the question whether even if the interference is in respect of only a certain portion of the demised property, the rent for which is separately assessed, there can be an apportionment, was expressly left undecided on the ground that the case before their Lordships did not require a decision on it. Mookerjee, J. said:

It is unnecessary foe us to consider whether the exception can be defended on principle, because it is clear that the case before us does not fall within the exception.

In the case of Dwijendra Nath Ray Chaudhury v. Aftabuddin Sardar AIR 1917 Cal 177 it was held that

When, therefore, it appears to the Settlement Officer that the landlord has evicted the tenant from a portion of the land of his tenancy, he is correct in saying that no rent is payale by the tenant is the landlord for the lands reorded as in his possession.

From the report of the case it does not appear whether the facts attracting the exception to the rule existed or not.

The decision in Sarada Prosad Bhattacharjee v. Rai Monmotha Nath Mitter Bahadur 19 C.W.N. 870 is wholly in applicable to the facts of the present case. It decides that where a tenant who had not beep put in actual possession of a portion of the demised land, nevertheless went on paying the full rent agreed to in the, lease, in a suit for recovery of arrears of rent by the landlord, it was held that the tenant cannot in such circumstances claim suspension of rent, but the rent payable to the landlord was liable to abatement. This not only does not help the defendants but also is, not in point. Granting the necessary facts namely, that notwithstanding the partial eviction the tenant continued to pay rent to the plaintiff, it could help the appellant rather than the respondent.

For the reasons already given, I would allow the appeal, reverse the decision of the lower appellate Court and restore that of the trial Court with costs.