ABDUL SAKUR Vs. PRATAB UDAINATH SAHI DEO

JUDGEMENT

(1.) This is an appeal under the Letters Patent by the defendant against a decision of Imam J. The appeal arises out of a suit by the plaintiff for recovery of rent for the years 1995 to 1997 sambat. The area of the holding was 55 acres. The defence of the defendant was that he had been dispossessed of 8 acre and that he was, therefore, entitled to suspension of the entire rent of the holding. The Courts below allowed him proportionate reduction of rent, holding that the dispossession had not been tortuous, that the rent was not a lump sum rent but at the rate of so much per acre, and that the equitable course was to permit a proportionate reduction. That decision has been upheld by Imam J, who observed that the original rent was at a certain rate per acre, and that even if there has been dispossession by the landlord from a small part of the holding, the dispossession was the result of inadvertency and not of force or deliberation, and, lastly, that there has been no impairment of the value of the holding by the dispossession from a minute portion of it.

(2.) In Rameshwar Lal V/s. Butto Kristo Rai A.I.R. 1934 Pat. 653 it was held by a Division Bench of this Court, of which I was a member that to constitute eviction of the nature entitling to a total suspension of rent the lessee must establish that the lessor, without his consent and against his will, wrongfully entered upon the demised premises and evicted him. In other words, to justify withholding of the rent, the act of the landlord must be forcible or at any rate tortuous. It was pointed out that there are certain exceptions to the rule that a lessee is entitled to a total suspension on partial eviction and where the Court will be entitled in equity to give a decree for rent only in respect of the portion of the leasehold property of which the tenant has been in undisturbed possession. In Basanti Lal V/s. Jamuna Prasad A.I.R. 1941 Pat. 417 the facts were that the plaintiff sued for recovery of rent of a sub-tenure of which he had himself recovered a part of the rent to which the defendant was entitled, under a mistake. It was held that, as the plaintiff had not deliberately intended to dispossess the defendant from any portion of the sub- tenure, the latter was not entitled to a suspension of the rent of the sub-tenure. Reference was also made to a decision in Mt. Deoki Kuer V/s. Shiva Prasad Singh A.I.R. 1939 Pat. 356. That, however, was. a case where the rent of the holding was a lump sum rental and the dispossession was tortious.

(3.) The present case falls within the principles of the decision in Rameshwar Lal v. Butto Kristo Rai A.I.R. 1934 Pat. 653, and must, therefore, be dismissed with costs. Manohar Lall J. I agree.