Shiva Prasad Singh vs Mt. Deoki Kuar

Chatterji, J.—This second appeal arises out of a suit for arrears of rent for the period from 1338 to 1341 Faslis in respect of 80 acre of kasht lands bearing annual jama of Rs. 8.15-11 including cess. The lands appertain to three khatas Nos. 26, 48 and 54. The defendant pleaded inter alia that the jama was Rs. 6-9-12 dams and she claimed suspension of rent from 1339 Fasli on the ground that she was dispossessed by the plaintiff from plots Nos. 787 and 788 measuring 22 acre. The learned Munsif who tried the suit held that the jama of the holding was Rupees 8-15-11 as alleged by the plaintiff. He also found that the plaintiff settled the two plots Nos. 787 and 788 with certain other persons towards the close of 1338 with the result that the defendant was dispossessed there from. On these findings he decreed the suit only for the year 1338 and allowed suspension of rent for the remaining period. His decision was confirmed on appeal by the defendant. Hence she has come up in second appeal. The value of the suit was Rs. 44-15.7 only and therefore a preliminary objection was taken that this second appeal is barred under the provisions of Section 153, Bihar Tenancy Act. No such objection was taken in the lower Appellate Court obviously because the Munsif who tried the suit was not specially empowered to exercise final jurisdiction u/s 153, Clause (1).

On a perusal of the judgment of the Appellate Court, it appears that it decided the question as to what the annual jama of the holding was. This is a question of the amount of rent payable annually by the tenant and comes under one of the exceptions mentioned in Section 153. The objection must therefore be overruled.

Coming to the merits of the appeal it appears that the defendant purchased portions of three different holdings appertaining to khatas Nos. 26, 48 and 54 in 1336.

It further appears from the takhtabandhi prepared in a Collectorate partition effected before the defendant''s purchase that each of the plots concerned in this suit is separately assessed to rent and that the rent of the two plots Nos. 787 and 788 comes to Rs. 1-12-7 besides cess. That the defendant has been dispossessed from these two plots at the instance of the plaintiff is a finding of fact binding in second appeal. The point urged in support of this appeal is that the Courts below committed an error of law in applying the principle of suspension of rent to the facts of the present case.

Both the Courts below have applied that prinoiple, relying upon the decision of this Court in Dalip Narayan Singh v. Suraj Narayan Missir AIR (1935) Pat. 38. In that very case it has been laid down that even in the case of dispossession by the landlord the question whether a tenant would be entitled to suspension of rent is to be determined with reference to the facts of each particular case, and that the sound course would be to determine what is equitable in each case.

In the present case there are certain salient facts which the Courts below failed to consider. The defendant''s holding is not of long-standing. She acquired it by purchase by different kabalas in 1336. Her purchase was not in respect of one entire holding but of portions of three different holdings. The two plots Nos. 787 and 788 which appertain, and are the only plots out of the defendant''s holding appertaining to khata No. 26 appear to have been purchased by a separate kabala with separate rental: vide evidence of D.W. 1. Ordinarily when a portion of a holding is purchased with separate rental assigned to it and the purchase is recognized by the landlord, the purchased portion would constitute a separate holding by itself, the remaining portion in the possession of the old raiyat constituting another. In this view the defendant by her purchase of portions of three different holdings could be justly considered to be possessed of three separate holdings.

This question however need not be gone into because in this case the parties went to trial as if the different portions of the three holdings purchased by the defendant constituted one holding, though I have great doubt as to whether they really constitute one holding. The plots in question are in possession of other persons who have built houses thereon. It hardly lies now in the power of the plaintiff to restore the defendant''s possession.

On the other hand the defendant, if she likes, may sue to recover possession from the trespassers with mesne profits. If suspension of rent were to be allowed, the natural consequence will be that the defendant will enjoy the remaining lands for all time to come without being liable to pay rent for them. If the case had been of a lump rental, the position might have been different. I fail to see how in the circumstances of this case it will be equitable to allow suspension of the entire rent. No doubt the total area of the holding is 80 acre and the dispossession is from "22 acre, that is, a little more than one-fourth, but there is nothing to show nor even any suggestion that the loss of this ''22 acre will in any way interfere with the defendant''s enjoyment of the remaining area in her possession.

In my opinion it would be pushing the doctrine of suspension of rent too far if it were to be applied to the facts of the present case. I consider it fair and equitable that the defendant should pay proportionate rent for the area in her possession. The annual rent for this area including cess will be Rs. 7.2.6 (Rs. 8-15-11--Re. 1.13.5). The total amount for the period from 1339 to 1341 comes to Rupees 21-7-6. Interest is disallowed.

Therefore the appeal is allowed and the plaintiff will get a further decree for Rs. 21-7-6. In the circumstances of the case I direct that the parties will bear their own costs in this Court as well as in the lower Appellate Court. As regards the costs in the trial Court, its order will stand. Leave to appeal under Letters Patent is granted.