RAGHUPATI CHATTERJEE Vs. PANCHANANI DASSI

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff in a suit for recovery of arrears of rent for the years 1334 to 1337 B.S. The suit has been dismissed by both the Courts below. Hence the present appeal. It is admitted that the property originally belonged to one Nrisingha Pada Saha. Two rival claimants came upon the field as being purchasers of the interest of Nrisingha Pada Saha, namely Nrisingha Hari Das and the present plaintiff Raghupati Chatteriee. The defendants were tenants on the land. In the year 1913 Raghupati instituted a suit for rent against them. That suit was decreed by consent. The result of this decree was to establish firmly the relationship of landlord and tenant between Raghupati and the defendants. Accordingly Raghupati the appellant before me would ordinarily be entitled to recover rent from the defendants in respect of the suit land. Other circumstances however intervened. The very next year on 2 January, 1914, Nrisingha Hari Das instituted a suit against Nrisngha Pada Saha and Raghupati Chatterjee. In that suit he prayed for a declaration of his title to and possession of the properties in suit. Apparently the position taken by him was that his purchase prevailed upon the purchase by the plaintiff of the right, title and interest of the original owner Nrisingha Pada Saha.

(2.) Shortly after the institution of the said suit Nrisingha Hari Das and the present defendant 1 sued for rent. The present contesting defendant 1 without waiting for the result of the title suit of Nrisingha Hari Das, allowed a decree to be passed against her and in favour of Nrisingha Hari Das by consent on 7 August 1914. Since then she has been paying rent to Nrisingha Hari Das. The title suit of Nrisingha Hari Das against Raghupati Chatterjee was however finally dismissed in 1922. The judgment of this Court is reported in Baghupati Chatterjee V/s. Nrishingha Hori Das, 1923 Cal 90. The question therefore whether the plaintiff has a title to the land in suit or Nrisingha Hari Das has title to the same, is res judicata between them by reason of this decision, and it must be held that as against the plaintiff, Nrisingha Hari Das has no title to the land in suit. The defence of the defendant was that inasmuch as she had attorned to Nrisingha Hari Das believing bona fide that he had a superior title the plaintiff could not recover rent. Her further defence was that inasmuch as she repudiated her tenancy under the plaintiff and with notice to the plaintiff attorning to Nrisingha Hari Das, the suit for rent is not maintainable. Both these pleas found favour in the Courts below. In my view the Courts below have gone wrong.

(3.) It is well settled that a tenant cannot terminate his tenancy by repudiating the tenancy, or by denying his landlord's title. Such an assertion on his part only gives the landlord a right or option to terminate the tenancy and to recover khas possession. But the landlord need not exercise that option at all. If he ignores the repudiation he can still go on receiving rent and go on suing the tenant for rent. In a series of cases this principle has been laid down, and it is discussed in detail in a judgment of this Court in Bejoy Chand Mahatap V/s. Gurupada Haldar (1928) 32 CWN 720. I do not agree with either of the Courts below or with the contention of the advocate for the respondent that the fact that the defendant repudiated her tenancy under the plaintiff and with notice to him attorning over to Nrisingha Hari Das is any defence to the suit for rent.