INDU BHUSAN CHOWDHURY Vs. MOAZAM ALI BISWAS

JUDGEMENT

(1.) In this case, the plaintiffs appeal from a decree of the learned District Judge of Faridpur modifying the decision of the Subordinate Judge in a suit for rent under a kabuliat dated 9th Aswin 1322 B.S. It appears that the tenant under this kabuliat was really a cosharer in certain lands with the plaintiffs and that the lands having been diluviated and having thereafter reformed the defendant entered into possession in the exercise of his joint title. Thereafter a certain dispute arose between the parties and it was finally accommodated by the kabuliat which is now in suit-a kabuliat whereby the plaintiffs gave a lease of certain lands which were described therein so far as their eight annas share was concerned to the defendant. It will be observed that at the time this kabuliat was entered into, the defendant was a person who had been on the land and was in possession and was in a very good position to know exactly what lands he was in possession of.

(2.) The questions which arise in the present suit arise because, first of all, the defendant says that from a certain portion of the lands of the kabuliat he has been dispossessed by the plaintiffs. The learned Judge on that has held that it has not been shown that he has been dispossessed by the plaintiffs but that the amount of land that the tenant has been in possession of has undoubtedly decreased. Accordingly, independently of any question whether or not it is the action of the plaintiffs that has deprived their tenant of this land, he has held that an abatement of rent is to be given under the general provisions of the law. Now, the only question which arises upon that is this : It has been found that the tenant is in possession of certain other lands, namely, 43.68 bighas and the appellants complain before us that the learned District Judge was wrong in giving an abatement for 41 bighas and odd of land by which the amount of land in the possession of the tenant has been reduced without taking into account the additional land of 43.68 bighas. As to that, there can be no doubt that this kabuliat, though it mentions the boundaries, mentions boundaries which are not necessarily the same to-day and tomorrow and a year hence, and if it can be shown that that extra land in question is contiguous to the suit land and is possessed by the defendant under colour of the plaintiffs right, it would no doubt be unjust to take account of the extent to which the land under the kabuliat has shrunk on one side without taking into account the extent to which it has increased on the other, The finding of fact, however,-I wish it had been more clear and more detailed-is that this area of 43.68 bighas has no connexion with the demised land and Mr. Roy Choudhury on behalf of the defendant respondent informs us that the commissioner in the suit had made an enquiry and found that it was distant from the boundaries mentioned in the kabuliat. If this land had no connexion with the land of the kabuliat but was an independent trespass upon the land of somebody else, this question of extra land has no bearing upon the question whether the lands mentioned in the kabuliat have decreased as alleged. I am, therefore, of opinion that it is not open to us in second appeal to interfere on this point with the decision of the learned District Judge.

(3.) The next point for consideration arises from an allegation by the tenant defendant that the Government in connexion with a certain neighbouring khas mehal has taken possession of an area of 314 big-has-half of which will be 157 bighas which may be attributed to the plaintiffs share. The question is whether with regard to this fact the tenant is entitled to an abatement of rent. Now, I propose to consider this question upon two lines- I propose to consider, first, whether the tenant has a good case on the principle of eviction by title paramount and I propose to consider, in the second place, whether he can make a good case for abatement of rent by virtue of anything contained in Clause (c), Section 108, T.P. Act. I would point out that these two questions are really distinct and the principle of eviction by title paramount has never rested upon the covenant for quiet enjoyment. The covenant for quiet enjoyment at common law does not extend beyond the acts of the lessor or of persons claiming through or under him and th9 question of eviction by title paramount is entirely independent of any wider express covenant for quiet enjoyment which can constantly be found in leases.