JITENDRA NATH ROY Vs. ASUTOSH GOSWAMI

JUDGEMENT

(1.) THIS appeal arises out of a suit for rent with regard to a kaimi jama held by the defendant under the plaintiffs. The objection of the defendant which is now material to mention is that the landlords are not entitled to the full rent claimed which is reserved under the lease but that he (defendant) is entitled to an abatement to the extent of Rs. 80 which amount the defendant has to pay to the Government under the following circumstances: There was a river within the estate called Barasil river on the bed of which lands formed. The Government instituted Dearah proceedings with reference to the lands formed on the bed of the river. It has been found by the Trial Court--and that finding has not been displaced on appeal--that the plaintiffs had notice of the proceedings commenced by the Government. As a result of these proceedings the Government constituted the lands so formed into a separate estate and offered settlement to the plaintiffs. The plaintiffs did not accept settlement and it is found by both Courts that the plaintiffs did not take any step to resist the proceeding taken by Government with regard to the question of a separate estate of the lands in question. As the plaintiff did not take settlement of this estate the Government settled the lands with the defendant temporarily and paid malikana to the plaintiffs which the plaintiffs have been accepting without any protest. Upon that, it was found by the Trial Court that the plaintiffs had acquiesced in the possession taken by the Government of the lands so formed on the ground that they were newly formed lands and had been accepting such benefit as they were entitled to under the law; that is, by accepting malikana from Government. It is, however, found now in this case that the action of the Government in taking proceedings, with regard to these lands was wrong as the lands were included within the permanently settled estate of the plaintiffs and also within the kaimi jama, of the defendant. On the finding, however, that the plaintiff had acquiesced in the act of the Government which amounted to a dispossession not only of the tenant but also of the plaintiffs as landlords with the result that the defendant had to pay rent of Rs. 80 to the Government for these lands as being included within the separate estate, that Court held that the defendant was entitled to an abatement of rent to that extent. On appeal by the plaintiff to the District Judge, the learned Judge has varied the decree of the Trial Court and allowed the plaintiffs a decree for rent for the full amount claimed minus the amount of malikana that the plaintiffs have been receiving from the Government. The Judge was of opinion that it was for the defendant to contest the action of the Government while the Dearah proceedings were taken because, as he said, the defendant was in possession of the lands and was cognizant of all the facts. The defendant has appealed to this Court and he contends that the proceedings under which he has been compelled to pay the sum of Rs. 80 per year as rent to the Government for occupying these lands amount to as ouster by a title paramount from a portion of the tenancy and that he is entitled to proportionate abatement of rent payable to the plaintiffs. The original plaintiffs have parted with their interest in the zemindari during the pendency of this appeal and the assignee has, on his own application, been added as a respondent to this appeal. The contention on behalf of the added respondent is that the act of the Government was a mere trespass and, as the landlord is not bound to protect the tenant froth unlawful eviction by a trespasser, the defendant is not entitled to any abatement of rent as against him. As a matter of fact, it has been found by the learned Judge that at the time when the Government took action under the Dearah proceedings, all parties were under the impression that there was nothing wrong in it. The action of the Government cannot be construed as an act of trespass against the tenant defendant alone but they claimed title as against the landlord also, and notice was given to the landlords of the action that they were going to take. The landlords acquiesced in the act of the Government in taking possession of these lands as Dearah and in the formation of these lands into a separate estate of which the plaintiffs were recorded as owners without any protest or; in other words, the plaintiffs admitted the paramount title of the Government which they, claimed to these lands. The tenant could not have been expected to be aware of the title of the landlords. If the act had merely been an act of trespass as against the tenant's interest the plaintiffs contention would have been sound. But, under the circumstances of this case, when the plaintiffs themselves had in a manner admitted the superior title of the Government to take possession of the lands by proceedings taken under the law, the plaintiffs cannot now turn round and say that it was mere act of trespass on the part of the Government to dispossess the tenant from his tenure and that the tenant is entitled to no relief. In substance, therefore, it is an ouster of the tenant from a portion of the tenancy under the plaintiffs by a title paramount, and the defendant is, therefore, entitled to an abatement of rent in proportion. The decree, therefore, of the learned District Judge is set aside and that of the Munsif restored with proportionate costs in that Court as allowed by that Court. The defendant will get full costs in this Court as well as in the lower Appellate, Court. Walmsley, J.

(2.) I agree.