SOURENDRA MOHAN CHOWDHURY Vs. KANAI LAL ROY

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff and it arises out of a suit for recovery of arrears of rent. The plaintiff claimed rent for the years 1340 B.S. to 1343 B.S. at the rate of Rs. 29-2- 11 per year, from the defendant who is a purchaser of the holding at a rent sale. The defence was that the defendant was not put in possession of c.s. plot No. 3242 which was a part of the holding, and so the entire rent should be suspended. This contention found favour with both the Courts below, and the plaintiff's suit has been dismissed in its entirety. It is against this decision that the present second appeal has been preferred.

(2.) Having heard the learned advocates on both sides, I am of the opinion that the judgment of the lower appellate Court is not satisfactory, and that the learned Judge has failed to approach the question from a proper standpoint. It is not disputed that the holding in suit comprises 21 O. S. dags covering an area of more than eight acres of land and c. s. dag No. 3242, which is one of these 21 plots, measures .26 acre only. The landlord in bringing the holding to sale mentioned all these 21 plots including e. s. dag No. 3242 and all of them have been set out in the sale certificate. The defendant's case is that after the purchase he could not get possession of c. s. dag No. 3242, which the landlord had before the sale let out to one Kailash Mondal by a kabuliat, which is Ex. A, at a rental of Rs. 3 per year. This kabuliat does not mention the dag number, but from the description of the plot, as given there, the Court of appeal below has come to the conclusion that it referred to this c. s. plot. The lower appellate Court, in my opinion, was wrong in not considering at all the question as to whether on the facts admitted and found in this case, there should have been an apportionment of rent or not. As has been pointed out in several decisions of this Court, Sakhisona Dasi V/s. Pran Krishna Das , Jagadish Nath Roy V/s. Surendra Prosad ( 36) 40 CWN 166, it is not that in every case of a lump rental and dispossession from a part, the tenant is at liberty to hold the other lands appertaining to the tenancy rent-free for all time to come. The Court should consider whether the landlord's failure to put the tenant in possession of the entire demised area was due to some mistake as to the extent of the boundaries or some other bona fide act. It has further to consider whether the tenancy is indivisible in the sense that the plots are such that dispossession from one plot necessarily interferes-with the enjoyment of the rest.

(3.) There is no allegation of forcible expulsion in the present case from any part of the demised land, and it may be said that bona fides on the part of the landlord was proved to some extent, by the fact that this C.S. plot No. 3242, was mentioned as one of the dags constituting the tenancy in the plaint of the rent suit and also in the sale certificate. There is no potta granted by the landlord in respect of C. S. Dag No. 3242, and it is significant to note that the kabuliat Ex. A, does not describe the plot with reference to the dag number. These circumstances may establish a case of honest mistake by the landlord, and in any case the question has got to be considered as to whether O. S. Plot No. 3242 can be separately possessed without interfering with the enjoyment of the rest of the holding. In these circumstances I am of the opinion that the appeal should be re-heard. I therefore set aside the judgment of the lower appellate Court and send the case back in order that the appeal may be heard and disposed of according to law in the light of the observations made above. If the appeal Court finds that this is a case of apportionment and not suspension of rent, it should apportion the rent in such a manner as it thinks proper. It would be open to the Court to take additional evidence in its discretion. There will be no order as to costs of this appeal; further costs will abide the result.