Authored By : B.B. Ghose, A.H. Cuming

B.B. Ghose, J.

1. These three appeals arise out of three suits for rent.The plea of the defendants mainly was that the plaintiffs having dispossessedthem from certain portions of their holdings they were entitled to have theentire rent suspended for the years in suit.

2. There were previous suits for rent in 1915 for these veryholdings. It appears that the defendants in those cases also raised the pleathat they had been dispossessed of those very lands which are now in disputeand consequently there should be suspension of rent. The question of suspensionof rent was decided against the defendants and it was found in those cases thatthere had been no dispossession by the landlords.

3. The learned Munsif held that the question of suspensionof the rent was res judicata. He also held upon the facts that it was notsatisfactorily proved that the defendants had been dispossessed from any of thelands. Upon that finding the Munsif passed a decree for the entire amountclaimed by the plaintiffs. On appeal by the defendants the learned Judgeapproached the question of res judicata from the point of view as to whetherthe defendants were entitled to a proportionate reduction of rent on account ofdispossession from portions of the holdings. His view was, following the caseof Nil Madhab Sarkar v. Brojo Nath Singha 21 C. 236 : 10 Ind. Dec. 789, thatthe question of the amount of rent payable for a particular period in a suitfor rent cannot be held to be res judicata on account of a previous decision asto the amount of rent for a different period. The learned Judge then proceededto apportion the rent in a certain proportion.

4. Defendant No. 1 appeals to this Court and his contentionis that the whole of the rent should be suspended with regard to these jamas.

5. The decision of the lower Appellate Court on the questionof res judicata considered from the point of view taken may be right. But hedid not approach the question of res judicata with regard to the plea ofsuspension of rent on account of the dispossession alleged by the defendants tohave occurred before the previous suits for rent in the year 1915. The learnedJudge also does not mention in his judgment what were the issues in those rentsuits. As the Munsif has pointed out the question of suspension of rent onaccount of dispossession was distinctly raised in those previous suits. As thedecisions in the previous suits are not before us and we are not aware what theissues were in the previous rent suits it is not possible to say whether thedecisions in the previous rent suits operated as res judicata with regard tothe question of suspension of rent. For the purpose of the present appeal itmay be taken that this question was not res judicata. It appears, however, fromthe judgment of the learned Judge that the question of suspension of rent wasnot taken before him at all But the statement of the learned Advocate for theappellants may be accepted that this question was raised before the DistrictJudge.

6. Taking now the facts found by the District Judge on whichthe suspension of rent is claimed it will be observed that the learned Judgehas found that the defendants were dispossessed of two plots measuring 2 1/3bighas and 2 bighas out of 87 bighas of land and of one plot of 2 3/4 bighasout of an area of 150 bighas of land by the plaintiffs by accepting kabuliyatsfrom different tenants with regard to these small portions of land. The learnedJudge does not say distinctly under what circumstances these kabuliyats weretaken by the plaintiffs. But it has been found by the Munsif on the admissionof the defendants gomashta that these plots of land were sold as appertainingto some other jamas belonging to these defendants in a suit for rent brought bythe plaintiffs for those other jamas. It would thus appear that thisdispossession took place by virtue of a decree of a Court against these verydefendants under which these plots were sold as appertaining to some otherjamas.

7. It is true the rule of suspension of rent on account ofeviction by the landlord of the tenant from a portion of the demised premiseshas been adopted in this Court in a series of cases and it is too late toquestion the adoption of that rule in our Court now. But the facts necessary tocause suspension of rent on account of an alleged eviction by the landlord mustbe distinctly found in order to bring into operation this rule which has beenapplied as a punishment to the landlord for his illegal acts. It is unnecessaryfor me to state in detail what findings are necessary to support theproposition that the entire rent should be suspended for the eviction of atenant from any part of the demised premises, however, small it may be. Thefacts which would bring into operation the rule may be found in theobservations made in the case of Upton v. Townend (1855) 17 C.B. 30 at p. 64 :25 L.J.C.P. 44 : 1 Jur. 1089 : 139 E.R 976 : 104 B.R. 562 by Jervis, C.J.,which has been quoted and followed in the case of Dhunput Singh v. MahomedKazim Ispahain 24 C. 296 : 12 Ind. Dec. (N.S.) 864 which may be considered asthe leading case on the subject in our Court. Jervis, C.J., states what themodern meaning of the word eviction is. He says it is "not a mere trespassand nothing more, but something of a grave and permanent character done by thelandlord with the intention of depriving the tenant of enjoyment of the demisedpremises". Then he goes on to observe . "If that may in law amount toan eviction, the Jury would very naturally cut the knot by finding whether ornot the act done by the landlord is of that character and done with thatintention". In all the cases in our Court where suspension of rent hasbeen allowed on this ground it has been found that the landlord had done suchan act with the intention of depriving the tenant of the enjoyment of thedemised premises. Or as I have already stated it is a punishment awarded to thelandlord for his illegal act or highhandedness. In the present case there is nosuch finding. The facts only amount to this that in a previous rent suitagainst these very defendants a portion of the land appertaining to these jamasin question were included in the decree for rent of the other jamas and soldalong with other lands. It was open to the defendants in that case to point outthat the lands now in question did not appertain to the other jamas. Theyrefrained from doing so. It must be either through inadvertence or for someother cause that the lands which have been found now to appertain to the jamasin suit was stated as appertaining to some other jamas. That can hardly beconstrued as an act done by the landlord with the intention of depriving thetenants of the enjoyment of the demised premises. It has not been so found bythe learned Judge who considered it to be only a case of apportionment. Itseems to me that as the rule of law as regards suspension of rent has beenintroduced in this country as a rule of equity, justice and good conscience, oras it is said in some of the cases a rule of policy, we must look to thecircumstances of each case in order to apply that rule. Having regard to thefact that the defendants have been deprived under the circumstances statedabove of only a very small fraction of the land comprised within their jamas asequitable decision seems to have been arrived at by the learned Judge byapportioning the rent in the proportion he has done, that is deducting the rentof 2 bighas and 2 1/2 bighas out of 87 bighas and of 2 3/4 bighas out of 150bighas of the holdings. Otherwise it would have the effect of making thedefendants practically the owners of the properties as they would be entitledto hold the lands in perpetuity without paying any rent whatsoever.

8. On these grounds I am of opinion that the appeals shouldbe dismissed with costs.

A.H. Cuming, J.

9. I agree.

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Biseswar Sarkar vs.Kali Charan Ash and Ors. (02.12.1925 -CALHC)