ANNADA PROSAD MUKHOPADHYA Vs. MATHURA LAL NAG MAZUMDAR

JUDGEMENT

(1.) This appeal arises out of a rent suit. The plaintiff sues to recover Rs. 2,790-3-15 as rent with cesses and interest for the years 1306 to 1309 under a pattah and kabuliat dated 2nd Joisto 1302 and executed by himself and the defendant respectively. The land leased to the defendant is described as Pargana Rangdia, a mehal bearing Towzi No. 163 in the District of Khulna, constituting a patni taluk, of which the plaintiff claims to hold exclusive possession.

(2.) By the pattah the land was estimated at about 800 bighas, 150 of which were regarded as garlaik or unfit for cultivation. For 68 bighas 17 Cottahs 8 chittaks the defendant agreed to pay from the outset the full rent of Re. 1 per bigha and road cesses at 1/2 anna in the rupee. The balance of 581 bighas 2 cottahs 8 chittaks he was to hold rent free from 1302 to 1304, and from 1305 he was to pay a progressive rent upon it commencing at 4 anns per bigha and culminating from 1308 in the full rent of Re. 1 per bigha. The 650 bighas are described as remaining after deducting about 150 bighas of unculturable land from about 800 bighas of monirtat, or, all sorts of mathan, khal, khaudak, hasil, and patit lands, with the exception of hazira and brahmottar lands. The pattah provides that whenever any quantity of land in the mehal should be found to be more on measurement the defendant should pay a proportionately higher rent. If it should be found to be less, he was to get a proportionate reduction. The schedule to the pattah gave the boundaries of the property in three lots measuring about 275, 190 and 185 bighas respectively. It is conceded that defendant is in possession of 799 bighas 7 cottahs 10 chittaks of land, that is to say, to all intents and purposes of 800 bighas, the amount mentioned in the pattah. It has, however, been found by both the lower Courts that the boundaries as given in the pattah, having especial regard to the Northern boundary, the Plodder's Road, would include a much larger area of about 1,500 bighas in all. Speaking from the map attached to the paper-book, defendant has possession of plots A. C. D. The boundaries would include also Ha. and Hb. to the north. It further appears that in Asarh 1305 plaintiff granted to one Rasik Lal Dutt, his naib's nephew, a pattah of 350 bighas of land to the north of that leased to the defendant. It is said that under that pattah the lessee has actually possession of nearly 1,000 bighas from which it is argued that there would be nothing strange in defendant being entitled to 1,500 bighas under a pottah which mentioned 800. Defendant duly paid the prescribed rent up to the end of 1305. It is noticeable that at least two payments of Rs. 85 on 21 Pous 1305, and of Rs. 100 in 1307, were made after the lease to Rasik Lal Dutt. Defendant then objected to pay rent : on the :ground that plaintiff had not put him in possession of all the land demised. Plaintiff accordingly on the 14th April 1903 filed this suit. But the Courts below have concurred in dismissing plaintiff's suit in toto on the ground that unless and until defendant is put in possession of the whole property demised, which they find to measure about 1,500 bighas, there must be a suspension of the rent and defendant is in no way liable to plaintiff. The only question for our determination is whether this view is correct. We must, I think, accept the finding of a lower appellate Court that the northern boundary of the land demised to defendant was the Poddar's Road; in other words, that plots Ha. and Hb. should be included in his land making altogether 1,500 bighas; although it is at first sight somewhat startling that the land which the parties calculated roughly, no doubt, at 800 bighas should turn out to be nearly double that amount. It is true that speaking generally the boundaries given in a conveyance are the true criterion of the amount of land conveyed. It is not, however, an absolutely hard and fast rule. The true construction to be put upon a deed is that which will as far as is possible bring its several provisions into harmony with one another and express most nearly the intention of the parties see Herrick V/s. Sixly L.R. 1 P. C. 436. Here the learned Subordinate Judge is constrained to admit, (1) that the question of boundaries in the Sunderbans is always an uncertain one, and (2) that in this particular case if the northern boundary be taken as the road which both Courts find to be the Poddar's Road, then the western boundary will be different from that given in the puttah. In these respects the finding is open to criticism. Bat accepting it, as we do, I cannot agree with the conclusion of the lower Courts that defendant is altogether absolved from payment of rent. Much reliance was placed by the respondent's counsel on the case of Dhunput Singh V/s. Mahomed Kazim Ispahain 24 C. 296. In that case after discussing English cases bearing on the question of suspension of rent in consequence of the eviction of a tenant by his landlord, their Lordships deduced certain principles the correctness of which I do not wish to dispute. That case was followed in Harro Kumairi Chowdhurani V/s. Purna Chandra, Sarbogya 28 C. 188 and distinguished in Kali Prasanna Khasnabish V/s. Mathura Nath Sen 34 C. 191. Bach case, however, must be decided upon its own facts and I think that the facts of the present are so very different from the facts of the case in Dhunpat Singh V/s. Mahomed Kazim Ispahain 24 C. 296 as to make that case inapplicable here. In the first place there was here no eviction of dispossession of property so called. Nor did the defendant at the commencement ever allege it; (see paragraph 2 of his written statement). The finding of the Sub-Judge is explicit on the point. There is no sufficient evidence "he says, of the actual dispossession, but it is a fact that it was defendants leasehold, but he was not allowed possession of the land." All that can be said is that the plaintiff did not give the defendant possession of land over and above the 800 bighas though more was included in his lease. Secondly, defendant entered into possession of 800 bighas and for nearly 4 years paid rent in the terms of the pattah; what is more, he went on paying rent even after he found that he was not to have this extra land. Now by law the lessor is bound to put the lessee in possession of the land demised. That is the general law, apart from Section 108 A (b) of the Transfer of Property Act which does not apply to this case. If he fails to do that, the lessee may say "very well, I will surrender my lease," or he may take steps to enforce the contract against the lessor. He cannot, I think, say, as he tries to say in this case, that he will hold what land he has in possession (which after all is the exact area by measurement that he contracted for), but will hold it rent free for all time. If knowing that the lessor cannot put him in possession of the remaining land demised, he keeps what he has got, it appears to me contrary to all principles of justice, equity and good con- science that he should not pay rent for it. It was argued that there could be no apportionment, because the effect of that would be to convert the plaintiff's suit, which is one for rent under the lease, into a suit of another and inconsistent character, namely, one for compensation for use and occupation, a suit which negatives the existence of a tenancy. I do not think that there is any force in this contention. The tenancy is still subsisting and the claim is for rent under the lease, though in the nature of a quantum meruit. It is to be observed that the rent now due from the defendant for the land in his possession is very nearly the actual sum contemplated by the lease. If he were to get possession of the other 700 bighas, the rent would be very largely increased. I do not propose to enter upon an elaborate discussion of the English cases. It may be questioned how far the technicalities to be found in the English law should be allowed to affect the relations of landlord and tenant in this country. In one respect the principle underlying the English decisions appears to be inapplicable to the present case. Eviction is regarded as a wrong done by the landlord to his tenant for which the former is to be penalised. Here not only, as I have said, was there no eviction properly so called, but there is no proof of malafides on the landlord's part. It may be that by a careless statement of boundaries in the two pattahs land which should be in-eluded in the defendant's holding are also included in those of Rasik Lal Dutt s. But that is all that can be alleged against the plaintiff. On the facts of this case as admitted and as found by the lower appellate Court, I think that the defendant has no defence to the plaintiff's suit for rent. The only point remaining for determination is the precise amount. of the defendant's liability. Under the pattah it is clear that he was to pay the rent at Rupee 1 per Jigha from the outset on 68 bighas 17 cottahs 8 chittaks with road cess at 1/2 anna in the rupee The rent and cesses due in respect of the remaining 581 bighas 2 cottahs 8 chit-tales are also clearly stated in the pattah; what is not quite clear is from what area of the pazira brahmottar lands is to be deducted. We find that defendant admits to holding 32 bighas of Brahmottar land and no hazira land among the 799 bighas 7 cottahs 10 chittaks in his possession. The plaintiff puts it at only 14 bighas of brahmottar. In order to avoid a reference and further delay, I propose (and to this the plaintiff's pleader consents) to give defendant credit in the present suit only for the 32 bighas of brahmottar land and to hold him exempt in this suit from payment of rent for the 150 bighas as specified in the pattah and 32 bighas brahmottar land, which he says, he holds, in all 182 bighas For the balance, that is, for 617 bighas 7 cottahs 10 clittaks defendant must pay rent and cess at the rates specified in the pattah. I do not think that it would be fair to tax defendant with interest at 12 per cent. per annum for so long a period. I think that the justice of the case will be met if we award plaintiff damages at the rate of 25 per cent, on his claim. I would, therefore, allow the appeal and pass a decree in favour of the plaintiff for an amount to be ascertained as above with costs in proportion in all Courts. Vincent, J.

(3.) This appeal arises out of a suit to recover rent for the years 1306 to 1309 on account of certain lands held by the defendant under the plaintiff in a patni taluk of the latter in the district of Khulna.