SUSIL KUMAR BISWAS Vs. RAJANI KANTA CHAKRABUTTY

JUDGEMENT

(1.) These appeals are by the plaintiffs and arise out of two suits for rent. The suits are based upon two kabuliyats Exs. B and B(1), which refer to eight-annas share each of the land in question which originally belonged to two owners. The plaintiffs have purchased the interest of both the landlords and. Thus they are entitled to both the shares. The fact that there were two kabuliyats was the reason for bringing two suits. The question in both the appeals is the same. The defendant pleaded that there was no relationship of landlord and tenant between the parties; and secondly, that the whole rent had been suspended as they have been dispossessed of some portion of the demised premises. The following may be taken from the judgment of the lower appellate Court which; dismissed the plaintiffs suit affirming the decision of the Munsif. The defendant is an auction-purchaser of the tenancies at a rent sale held at the instance of the plaintiffs. SD the defendant is a tenant under the plaintiffs in respect of the tenancies in arrears. Now, the question is whether the plaintiffs are entitled to gat a decree for the arrears claimed, and this leads us to the consideration of the next point....

(2.) Then the Subordinate Judge states the history of the previous litigations and the fact that the plaintiff obtained a decree for rent for the year 1314 B.S., the landlords put the tenure to sale in execution of that decree and both the tenancies were purchased by the defendant under two sale-certificates, Exs., K and L. The Subordinate Judge then states that after the purchase the defendant took symbolical possession but, when he attempted to take actual possession he found that out of an area of 94 bighas, 14 1/2 cottahs of lands covered by the two kabuliyats, nearly 50 bighas of lands were in possession of Badan Sheikh and others, who secured a lease from the landlords on the basis of a subsequent registered kabuliyat Ex. M.

(3.) The Subordinate Judge finds that the kabuliyat Ex. M. was accepted by the landlords and it was so conceded on behalf of the plaintiffs before him. It was also found that the 50 bighas out of the kabuliyat Ex. M. were actually portions of the lands of the aforesaid two kabuliyats Exs. B and B(1) executed by the previous tenant the question that the Subordinate Judge decided was that, under the circumstances, there should be an entire suspension of rent with regard to these two tenancies. There is another fact which should be mentioned, that both the kabuliyats were permanent leases. Ex. M also appears to have been a permanent lease. The question to be decided in this case in whether on account of such dispossession of the tenant the entire rent should be suspended. There is one other fact which should be mentioned that the rent reserved in the kabuliyats was Re. 1-10-0 per bigha and not a consolidated rent for the entire area that was stated in the kabuiiyats to have been demigod to the defendant. The rule that rent is suspended on account of dispossession of the tenant from a portion of the demised premises is one derived from the English common law. An application of this rule to this country in its rigid form can hardly lead to justice. The origin of the rule in England has its historical basis. I need not detail those circumstances. The application o? this rule may be salutary in certain circumstances but it can only be applied in this country as a rule of equity, justice and good conscience. In many cases where permanent leases are granted to tenants of lands which have not been measured or the boundaries of which are indefinite, it so happens that when a lease is granted of contiguous lands to another tenant, the subsequent tenant oversteps the boundaries of his leasehold and encroaches upon the lands included in the former lease. In such a case, if the previous tenant does not take any steps to recover possession of his own property and allows the trespasser to remain in possession for the statutory period, he has bean held in some of the oases decided in this Court, to be entitled to raise the plea of suspension of rent if under that circumstance the landlord sues him for rent. This appears to ma to be a wrong application of the rule of sub-pansion of rent. In England, so far as I have bean able to sea, the rule is not so stringent, the cases which are relied upon as having decided the question in England in favour of suspension of rant may be examined to sea whether they support the rule as applied here to the full extent the first of the case is Reeve V/s. Bird [1834] 1 Cr. M. & R. 3. That was a case in which the landlord brought assumpsit for not keeping a certain messuage and other premises in tenantable repair. The facts are these, which may be taken from the head-note: A, the tenant of a house, three cottages and a stable and yard, let at an entire rent, for a term of seven years, before the expiration of the term assigned, all the premises to B, for the remainder of the term, the hou3a and cottages being in the possession of under-tenants, and the stable and yard in that of A, Tin landlord accepted a sum of money as rant up to the day o? the assignment, which was in the middle of a, quarter. B took possession of tae stable and yard only. The occupiers of the cottages having left them after th8 assignment, and before the expiration of the term, the landlord re-let them. A paid no rant after the assignment, but the landlord received rant from the under-tenants. Before the expiration of the term the landlord advertised the whole of the premise to be let or sold.