RAMESHWAR LAL Vs. BUTTO KRISTO RAI

JUDGEMENT

(1.) This is an appeal against a decree of the Sub-divisional Officer of Giridih passed in a rent suit instituted under the provisions of the Chota Nagpur Tenancy Act. The plaintiff is the usufructuary mortgagee from the landlord of Palaganj and the defendants are the lessees under him. The lease was executed on 15 August 1919, and the usufructuary mortgage concerning the leased properties was executed on 11 December 1926, and the plaintiff is entitled to collect rents. The annual rent fixed in the lease was Rs. 2,777-7-9, but the suit which is for the years 1335 to 1337. is on the basis of an annual rent of Rs. 2,648-6-9. The lease was of 15 villages and reduced rent has been claimed on the ground that possession of one of the leased village, namely Isri, was not given to the defendants by the proprietor himself.

(2.) The suit was resisted on two grounds, first, that the defendants were evicted by the mortgagor proprietor from village Ishri and therefore the defendants were entitled to suspend the payment of the entire rent; ana, secondly that the rent of 1335, was collected in advance by the proprietor himself before he granted the usufructuary mortgage to the plaintiff. The learned Sub-divisional Officer has overruled these two pleas and has decreed the plaintiff's suit. The defendants have preferred this appeal and the same two pleas have been repeated before us. There is a cross-objection on behalf of the respondent on the question of interest. The learned Sub-divisional Officer granted the plaintiff a decree for principal and interest.

(3.) The judgment however did not specify up to what date the interest would be calculated. The interest decreed is at the statutory rate under the Chota Nagpur Tenancy Act, namely 12 percent per annum. In the decree however the interest has been calculated only up to the date of the suit. The respondent contends that this ought to have been up to the date of the passing of the decree and that some interest should have been allowed subsequent to the decree till realization. The main controversy involved is whether the defendants have been evicted by the landlord from a portion of the leased premises so as to justify the total suspension of payment of rent. The case of the plaintiff as mentioned in para. 5 of the plaint was to this effect: It may be noted that together with the villages rent where of has been claimed village Isri also was given in thika to the defendants for Rs. 2,777-7-9. But the defendants with their own consent were not given possession over village Isri. It remained in khas possession of the malik. Therefore instead of the annual rent of Rs. 2,777-7-9, Rs. 2,648-6-9 was settled and the defendants had been paying rent in accordance with this (amount) to the malik of Palganj before the rehan was given to the plaintiff.