MAHAMMAD ALI FAKIR Vs. KARAM ALI TALUQDAR

JUDGEMENT

(1.) This is an appeal by the defendant against the decision of the Subordinate Judge of Bogra dated 30 May 1932 reversing the decision of the Munsiff of Bogra dated 31 March 1931. The suit in which this appeal has arisen is a suit brought by the plaintiffs now respondents for recovery of arrears of rent for the years 1333 to 1336 for two jamas one of Rs. 39-14-2 and the other of Rs. 3-12-0. The defence to the suit was that the landlord had dispossessed the defendant of a portion of the holding and that the rent should be suspended. The tenancy being one indivisible with a lump rental of Rs. 45 both the Courts below have come to a concurrent conclusion that the land now in possession of one Jahiruddin was at one time a part of the defendant's tenancy and further that it was abundantly clear from the evidence that the dispossession was by the landlord and that the dispossession was a forcible dispossession seeing that there was a regular fight at the time of the dispossession and the gomastha of the landlord was wounded. The Subordinate Judge says that he agrees with the learned Munsif that the defendant was dispossessed in the year 1324 B.S. of a portion of the tenancy. The tenancy was originally admittedly of Rs. 45. A portion of the land was found to be a Diara land and for this portion a separate khatian was made and the rent of Rs. 3-12-0 was settled for this khatian under Section 104, Ben. Ten. Act. In respect of the other land there has been one khatian with a rent of Rs. 39-14-2. Both the Courts proceeded on the footing that the rent is a lump rent and not at so much per bigha. The Munsif gave effect to the defence of the defendant and dismissed the plaintiff's suit. The Subordinate Judge on appeal was of opinion that no case had been made for suspension of the entire rent but that there should be a proportionate abatement; and for that purpose he remanded the suit to the trial Court for re-admitting it under its original number and for determining what rent should be abated for the land from which the defendant had been dispossessed and then passing a decree in accordance with the observations made in the judgment.

(2.) Against this order of remand the present appeal has been brought by the tenant defendant. A preliminary objection has been taken to the hearing of this appeal on the ground that the order could not have been passed properly under the provisions of Order 41, Rule 23, Civil P.C., as the trial Court did not decide the suit on a preliminary point. Consequently no appeal from the order of remand lies to this Court. One decision has been cited which lays down that cases of this kind must be treated as cases in which a remand is made under the provisions of Order 41, Rule 25, Civil P.C., as if the appeal was being kept in the file of an appellate Court and the appellate Court was merely setting aside the findings of the first Court on a particular issue which had been sent down. There is no doubt a decision of Page and Graham, JJ., to that effect in Jagat Hari Saha V/s. Medun Bardhan 1927 Cal 642. We have examined that decision and we find that on a review of all other authorities, viz., Basumati v. Taritbasini 1920 Cal 569, Prasanna V/s. Baidyanath 1920 Cal 124 and Kayem V/s. Bahadur Khan 1925 Cal 1258 that decision is one of the two cases which takes a view different from the view taken consistently by the several Benches of this Court which have held that although the provisions of Order 41, Rule 23 might not strictly apply where, the Court of appeal has remanded the, suit to the first Court which has been asked to determine finally the suit by the order of remand, an appeal to this Court is permissible under the provisions of Order 43 Rule 1, Civil P.C. We therefore do not think that there is any substance in the preliminary objection which must be overruled.

(3.) The real question in controversy before us is as to whether, when the rental is a lump rental as in the present case and the tenants have been dispossessed and forcibly dispossessed from a part of the demised premises-in this case about one-tenth of the demised area-there should be a total suspension of rent or a proportionate abatement. The appellant contends upon the authorities that there should be a total suspension. On the contrary the learned advocate for the respondents, supporting the judgment of the Subordinate Judge contend that there should be a proportionate abatement and not total suspension. The question as to whether in the case of a lump rental where there has been dispossession from a part of the demised premises there should be a total suspension of rent did come before their Lordships of the Judicial Committee of the Privy Council in Katyayani Debi V/s. Udoy Kumar Das 1925 PC 97. Their Lordships observed thus: The doctrine of suspension of payment of rent, where the tenant has not been put in possession of part of the subject leased, has been applied where the rent was a lump rent for the whole land leased treated as an indivisible subject. It has no application to a case when the stipulated rent is so much per acre or bigha.