JOYRAM CHANDRA LAHIRI Vs. BISNU CHARAN BISWAS

JUDGEMENT

(1.) This appeal arises out of a suit to recover rent in respect of a holding consisting of 15 bighas on a jama of Rs. 12-5-4 3/4 p. for the years 1323 to 1326. The defendant is an auction-purchaser in a rent sale which was held in 1916. His case is that, as a matter of fact, he did not get possession of one plot of land purchased in execution of the rent decree measuring about 12 cottahs and 11 chitaks as the landlord who brought the holding to sale had, on the 2 September, 1907, leased out that plot, which was originally a part of the holding, the subject of the rent sale to one Chandra Kanta. The learned Subordinate Judge affirming the decision of the Munsiff has dismissed the suit on the ground that as the landlord had dispossessed the tenant or rather has not given the tenant an opportunity of getting in possession of a part of the holding by leasing a part of it to Chandra Kanta the whole rent is suspended.

(2.) In appeal the only question urged before us on behalf of the appellants is that there should have been an abatement of rent and not suspension of the whole rent. A large number of authorities have been put before us as to whether this is a case for suspension of rent or a case for abatement of rent. As we have said this case is not one where the landlords have themselves dispossessed the present tenant. The landlords dispossessed the previous tenant against whom he obtained the rent decree by letting out one of the plots to Chandra Kanta. But when he put the property to sale in execution of the rent decree he obtained against the previous tenant, he included this particular plot, which he had taken out of the tenancy by the execution of the pottah to Chandra Kanta in the lands to be sold in execution of the decree and the present respondent purchased it in the auction sale on the faith of the representation that this plot was a. part of what he purchased. The general principle is that if a portion of the land is let out to a lessee and the lessor lets it again to a subsequent lessee and is unable in consequence to put the latter in possession of the whole holding there will be a full suspension of rent in such a case. For this principle, we may refer to the case of Manindra Chandra Nandi V/s. Narendra Chandra Lahiri [1919] 46 Cal. 956. The respondent's case is that he relies on the decision of that case and that under those circumstances he is entitled to get suspension of rent for the whole tenancy until such time as the landlord puts him in possession of this one plot. On the other hand, the plaintiff-appellants case is as they set out in the plaint that there was a mistake in the record of rights. It appears that though Chandra Kanta's pottah is dated 1909, in the record of rights dated 1912 this plot recorded as plot No. 521 was recorded as part of the tenancy which has now by the auction purchase become the tenancy of the respondent. The plaintiffs also alleged that as a matter of fact the tenant is not entitled to get suspension of rent but only abatement of rent because he was well aware when he purchased the holding at the auction sale and took possession that plot No. 521 had already been transferred to Chandra Kanta. It will appear from the evidence that as a matter of fact, respondent himself is a witness and proved the execution of the pottah in this very suit. The plaintiffs have therefore urged that this is a case for abatement and in this connection rely on the ease of Narendra Chandra Lahiri V/s. Manindra Chandra Nandi A.I.R. 1922 Cal. 153. Where it has been ruled that when a tenant knows at the beginning of the tenancy that some of the land of the tenancy is in the possession of another, he will not be entitled to have the rent suspended but only bo entitled to reduction of rent of that portion. We have been referred to no case that has dealt exactly with what the position would be in the case of an auction purchase in a rent suit. But this principle appears to us to be of general application and the general rule will be that there will be suspension of rent in oases where the landlord has by his action dispossessed or where the lessee has not owing to his action been able to take possession of a part of the holding sold; and the exception will be that there will be an abatement of rent where this has occurred with the knowledge of the tenant, before he entered into the land, that a portion of it was in the possession of another. In the present case, however, though we have been referred to the evidence there is no finding by either of the Courts below as to whether as a matter of fact the present respondent had knowledge of the transaction of 1909 transferring plot No. 521 to Chandra Kanta so that it had ceased to be a portion of the holding which he purchased in the rent execution ease in 1916. We consider that for a proper decision as to whether this is a case for suspension of rent or abatement of rent, an issue on this matter should be decided.

(3.) We therefore set aside the decrees of the Courts below and under Order 41, Rule 23 remit the case to the first Court for it to come to a decision after taking evidence, if necessary, on the issue as to whether the defendant was aware that plot No. 521 (corresponding to plot 4 of the pottah) had been given by a pottah by the land-lord to Chandra Kant before his purchase under the rent decree in 1916, If it finds that the defendant was so aware, he will only be entitled to abatement of rent which will be for that Court to calculate. If on the other hand, it finds that he was not so aware the suit will in accordance with the general rule to which we have referred, stand dismissed. The appellants must pay the respondent his costs in this Court, Costs of the lower Courts will abide the result.