SABARATULLA SHEIKH Vs. MANIKJAN BIBI

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for rent. The defence of the tenant defendant was that as the plaintiff did not put her in possession of a portion of the land, and that as she was also dispossessed by the plaintiff from another portion of the land, the entire rent ought to be suspended. The trial Court accepted the defence and dismissed the suit. On appeal to the lower appellate Court the decision of the trial Court has been affirmed. Hence the present second appeal.

(2.) A preliminary objection has been taken to the competency of this appeal on the ground that the value of the suit is below Rs. 100 and the decree of the lower appellate Court did not decide the question of the amount of rent annually payable by the tenant to the landlord. I am unable to give effect to this preliminary objection. In view of the defence taken the Court will have to decide whether the rent payable is Rs. 17 or in the alternative nothing at all. It is difficult to distinguish on principle a case of total suspension of rent from a case of abatement of rent or a decree for rent at a rate lower than claimed by the plaintiff. This view of the matter is supported by a decision of this Court in Dina Nath V/s. Sarat Chandra 1927 Cal 208, decided on 18 April 1916. The learned advocate for the respondent drew our attention to an unreported case decided by Cuming and Mallik, JJ., (in S. A. 1520 of 1924), decided on 3rd May 1927. No reasons were given in that case and further the attention of the learned Judges does not appear to have been drawn to the case reported in Dina Nath V/s. Sarat Chandra 1927 Cal 208 cited above. Under these circumstances I am not prepared to hold that the present appeal is incompetent.

(3.) It appears that the defendant's husband was the owner of this property. He sold this property to the plaintiff on 8 May 1928 and on that very day his wife took a lease of the lands purchased by the plaintiff from him. There cannot be any doubt therefore that the plaintiff did not take actual possession of the property for a single day. The evident intention of the parties was that the property would continue to be in the possession of the family as before, but the wife would have to pay Rs. 17 as rent. Omrauddin who is in possession of a portion of the homestead is in possession from a very long time and the defendant knew full well that he was in possession at the time when the land was sold by her husband and leased out to her. There cannot be any doubt therefore that the defendant got such possession of the demised land as it was capable of being made over to her. By these transactions the title of the property was transferred to the plaintiff but the possession, as it was with the husband before the sale was allowed to be continued in the wife on payment of a certain amount of rent. No question of being the lessee being put into possession of the property therefore arises in view of the admitted facts of the present case.