DHIRENDRA NATH ROY Vs. BHABATARINI DEBI

JUDGEMENT

(1.) The two suits out of which these two appeals arise were brought by the plaintiffs who are now appellants to recover rent for the years 1319-1322, 1322-1325 in respect of land let out by them to the defendants under a kabuliyat of 22nd Magh, 1278. There had been a previous suit between the parties to recover arrears of rent for the years 1309-1312, and in that suit an issue was raised and decided whether the rent was not wholly suspended by reason of the landlords having deliberately evicted the tenants from three plots which were parcels of the land demised. In that suit it was determined that by reason of the deliberate interference by the landlords with the tenant's enjoyment of the demised premises the tenants were entitled to a total suspension of the rent until the landlords restored them to possession of the plots from which they had been evicted. In the present suits the proceedings eventually came before the High Court, and the question which the High Court had to determine was whether the decision in the previous suit was resjudicata in the present suits. For the reasons which are set out in that judgment their Lordships held that the decision in the previous suit was not resjudicata. But from a perusal of the decision of the lower appellate Court their Lordships came to the conclusion that the learned Judge had not paid sufficient attention to the decision in the earlier rent suit, and that if he had had regard to it his conclusion might have been different. The case accordingly was remanded to the lower appellate Court in order that the appeal should be re-considered in the light of the observations of the High Court After remand <JGN>Page</JGN> 2 of 3 the learned District Judge came to a conclusion adverse to the landlord. He held that the plaintiffs officer dispossessed the defendants of these plots and caused them to be ploughed up.

(2.) The learned Judge further held that the conduct of the landlords throughout these proceedings had been malafide. Indeed, in the present suits which were for rent in respect of the premises demised under this kabuliyat the landlords had omitted in their plaint to insert those three plots, and it was only at a later stage of the proceedings that these three plots were mentioned in the plaint as being part of the demised property That omission to mention these three plots for which the plaintiffs were receiving rents from the tenants of an adjoining mouja was regarded by the learned District Judge as malafide conduct on the part of the plaintiffs, because at that time the plaintiff were well aware of the proceedings which had taken place in the earlier rent suit. We are of opinion that there was ample evidence to justify the finding of the lower appellate Court that the plaintiffs had interfered deliberately with the enjoyment of the demised premises by their tenants, and that the enjoyment of the tenancy by their tenants had materially been diminished. Upon that finding the question which arises is whether the plaintiffs were entitled to obtain rent in respect of any portion of the demised premisses, or whether the tenants under the law were entitled to claim a suspension of the whole of the rent due under the kabuliyat. In my opinion, the law is quite clear. Where there is a tenancy and that tenancy is an indivisible one in which a lump sum for rent is to be paid in respect of the whole of the demised premises if the landlord interferes with the due enjoyment of the premises or any part thereof by his tenants, as in this case by evicting them therefrom it is not open to the landlord to assert that any portion of the rent is payable in respect of any portion of the premises, for in law in such circumstances every pice of the rent is payable out of every portion of the premises demised. There is a doctrine for which authority can be found, however, that in a mourashi mokarari kabuliyat such as the one in suit where it can be proved that certain portions of the rent are specifically assessed and appropriated to certain parcels of the demised land, and in respect of a distinct parcel of which the rent is specified there is an eviction by the landlord the landlord is entitled to receive, notwitstanding the eviction, his rent in respect of the other portions of the land which are separately and specifically assessed for rent. It is unnecessary to express any opinion as to the soundness of that doctrine in this case for our decision will turn upon the provisions of the kabuliyat of 1278. The learned advocate for the appellants has urged that from a perusal of the kabuliyat it is apparent that this is a case in which distinct rents are payable in respect of two distinct mouzas, Satbaria and Jadabpur. We are unable to assent to that contention.

(3.) It is true and obvious that at the top of the kabuliyat there is to be found a record of the jamas which had bean payable in respect of the two mouzas Satbaria and Jadabpur. But there has been previous tenures in respect of those moujas, and it is apparent from the terms of the kabuliyat that it was intended by the parties that in respect of the properties which were the <JGN>Page</JGN> 3 of 3 subject matter of the moujas there should be one indivisible tenancy in respect of which one sum for rent should be payable in specified and periodical kists. Why then refer to the two separate moujas at all? For this reason it appears from the kabuliyat itself that there were arrears of rent payable in respect of the previous tenures, and for the purpose of considering what the consolidate rent should be in respect of the new tenure to be created the details of the earlier jamas were inserted in the kabuliyat. To my mind it is clear beyond doubt or controversy from the kabuliyat itself that one indivisible tenancy was created in respect of which one lump sum should be paid for rent. In the kabuliyat certain exceptions and deductions from the rent payable are set out, but there is no allocation of these deductions or any of them either to the one mouja or to the other. Yet if there were two distinct rents payable in respect of two distinct properties such a discrimination certainly would have been made. Again, the total rent is payable without reference to the properties contained in the one jama or in the other, and moreover, it is stated that for any breach of any condition set out in the lease the landlords should be entitled to re-enter upon the demised premises as a whole. For instance, if there was a breach with respect to the boundaries of Satbaria not only would the landlord be entitled under the kabuliyat to re-enter upon Satbaria, but also upon Jadabpur. That in my opinion, is entirely inconsistent with the theory that this was a kabuliyat under which there were distinct rents specified in respect of distinct parcels of the demised property In my opinion, for the reasons that I have given, amongst others under this kabuliyat there was created one entire tenure in respect of all the demised properties. Under those circumstances in my opinion, the ordinary rule will prevail, and there will be a total suspenion of rent until that portion of the demised property from which the defendants had been evicted is restored to them. The learned advocate for the appellants further urged that in this case it was not open to the tenants to plead that they were entitled to any apportionment of suspension of rent because from 1907 onwards they had taken no steps to regain possession of the land from which they were evicted. It is enough to state that this contention finds no place in the grounds of appeal to this Court, and we are not disposed to allow the appellants to raise it at this stage of the proceedings.