Authored By : Mookerjee, Newbould Edward Brooks, H.G.Pearson

Mookerjee, J.

1. These two appeals have been preferred under Cl. 15 of theLetters Patent against the judgment of this Court in the two suits for rent,inasmuch as the Judges of the Division Bench were equally divided in opinion.The suits were instituted by the appellant for the recovery of arrears of rentfrom the defendant, in respect of a tenure, for two consecutive periods. Thegrounds put forward by way of defence included a claim for abatement of rent onthe allegation that the defendant was not in possession of the lands in MouzahDaskati comprised in the tenancy. The trial Court gave effect to thiscontention.

2. On appeal to this court Mr. Justice Woodroffe held thatthe view taken by the Court of first instance was well founded. Mr. JusticeCuming held on the other hand, that the claim for abatement could not besustained in respect of the lands of Mouzah Deskati. The result was that underS. 98, sub S. (1) of the Civil Procedure Code, 1908, the decrees made by theSubordinate Judge stood confirmed. On the present appeal, the controversy wascentered on this question and it is consequently sufficient to recapitulateconcisely such only of the material facts as bear upon the solution of thepoint argued before us.

3. On the 27th November, 1878, Satyendra Nath Tagore granteda reclamation lease to Ananda Chandra Banerjee and Protap Narayan Sarkar, inrespect of lands in the Sundarbuns, estimated to cover an area about 3800bighas within specified boundaries. The lands comprised several Mouzahsincluding Daskati. As has since transpired this Mouzah was situated in fourrevenue paying estates, namely 982, 991, 992 and 993. Tagore was the proprietorof three of these estates, namely 991, 992 and 993 which included all the landsof Mouzah Daskati, except 61 acres comprised in estate 1982; this latter estatewas sold for arrears of revenue on the 10th June, 1875 and was purchased by oneHari Charan Banerjee on behalf of Hari Charan Chowdhury as recited in the deedof release dated 7th January, 1877.

4. Consequently under the lease granted by Tagore on the27th November, 1878, Banerjee and Sarkar acquired a good title to possession ofthe lands of Daskati except the area just mentioned and the fact isindisputably established that they did obtain possession of all the landscovered by the lease granted to them with in the specified boundaries whichthey expressly covenanted to keep intact. Ten years later, Hari CharanChowdhury (whose widow is the defendant respondent in these litigations)purchased at an execution sale held on 20th December 1887, the lands of anunder tenure in Daskati comprised within his estate 982 and obtained deliveryof possession through Court on the 6th April, 1883; under colour of thispurchase, Chowdhury forcibly took possession of all the lands of Daskati, andon or about 12th April, 1888, he dispossessed Banerjee and Sarkar of the landsof Daskati included in their tenancy. Banerjee and Sarkar were, as willpresently appear, in embarrassed circumstances: and did not take immediatesteps to recover possession of those lands by ejectment of Chowdhuri. They hadalready defaulted to pay rent to Tagore, who had instituted a suit against themearly in 1886 for recovery of arrears duo under the lease of the 27th November,1873, in respect of the years 1882-1885. The result was that on the 24thFebruary, 1887, an amicable settlement was effected between Tagore on the onehand and Banerjee and Sarkar on the other. The latter admitted that the landsin their occupation measured not 3800 but 4300 Bighas, and they agreed thatthey would not be competent to apply for abatement of rent for the saidadmitted 4300 Bighas on any ground whatever.

5. They further agreed as to the amount of arrears actuallydue, which they undertook to pay in specified instalments. The matter wasplaced before the Court on the 25th February, 1887; when the compromise wasconfirmed, and on the 8th March, 1887, a decree was drawn up on its basisSarkar and Banerjee however, did not carry out the terms of the decree, whichwas accordingly enforced by execution and on the 20th March, 1889 one NilkanthaSingh became the purchaser at the sale which followed in due course. Singh, inhis turn, failed to pay rent regularly, and the result was the institution of asuit against him by Tagore for recovery of arrears for the year 1889-90. Singhresisted the claim on the ground that he was not in possession of the lands ofDaskati and was entitled to proportionate abatement of rent.

6. The trial Court upheld this contention, and on the 28thAugust, 1891 made a modified decree in favour of Tagore. On appeal, theDistrict Judge approved of the same view on the 17th February, 1892. But, onsecond appeal to this Court, Norris and Banerjee, JJ., held on the 29th August,1893, that Singh who had purchased at the sale in execution of the consentdecree was bound by the agreement that rent would be paid in respect of 4300Bighas and that no remission would be claimed on any account whatever.

7. In support of this view, reliance was placed upon thedecision of Wilson and Field, JJ., in Ishan Chandra v. Chandra Kanta 13 C.L.R.35. The consequence was that this Court varied the decree and allowed the claimfor rent in respect of the entire area of 4300 Bighas. This decision has foundits way into the reports; Satyendra Nath v. Nilkantha (1894) 21 Cal. 383.

8. This decree was enforced in due course, and on the 16thApril, 1894, the defendant, Katyani Debi, wife of Hari Charan Chowdhury, becamepurchaser at the execution sale. As already stated, Banerjee and Sarkar hadmade no attempt to eject Chowdhury from the lands of Daskati during the briefperiod which intervened between the 12th April, 1888 when the dispossessiontook place and the 20th March, 1889 when their tenure was sold up by Tagore andpassed into the hands of Singh. Singh also did not take recourse to litigationto eject Chowdhuri during the four years which intervened between the 20thMarch, 1889 when he purchased and the 16th April, 1894, when his tenure was soldup and purchased by the present defendant.

9. The defendant, as might have been anticipated has neverendeavoured to recover the lands of Daskati from her husband, or after hisdeath, from his representatives-in-interest. On the other hand, she appears tohave amicably paid to the landlord the entire rent due year after year sincethe date of her purchase. The interest of the landlord has, by successivetransfers and devolution, now become vested in the present plaintiff, who hasinstituted these two suits for recovery of arrears; the first covers the period1916-17 and the second 1917-18. In each suit rent is claimed at the contractrate (13) as per bight mentioned in the kabuliyat of the 27th November, 1878,in respect of an area of 5161 Bighas which is alleged to be the area now foundby actual measurement in the possession of the defendant.

10. The claim has been resisted on a variety of groundswhich need not be enumerated for our present purpose. It is sufficient to statethat one of the objections was that the defendant was entitled to abatement inrespect of the lands of Mouzah Daskati which were annexed by her husband on the12th April, 1888.

11. The Subordinate Judge, as already indicated, gave effectto this contention. Mr. Justice Woodroffe has expressed his opinion in favourof the same view, while Mr. Justice Cuming has held that the wrongful seizureby Chowdhury which might have been remedied by recourse to law by Banerjee andSarkar or by Singh or by the defendant herself, cannot be invoked to sustainthe plea of abatement.

12. On behalf of the tenant defendant reliance has beenplaced on the rule that in the absence of a contract to the contrary, thelessor is deemed to contract with the lessee that, if the latter pays the rentreserved by the lease and performs the contracts binding on him, he may holdthe property during the time limited by the lease without interruption. Thisprinciple is of no assistance to the defendant, because it does not include acase of disturbance by persons having no lawful title, right of entry.Reference may in this connection be made to the exposition contained in theclassical judgment of Sir John Vaughan, Chief Justice of the Court of CommonPleas in the case of Hayes v. Bickerstaff (1669) Vaughan 118 = 124 E.R. 997.

By covenant in law the lessee is to enjoy his lease againstthe lawful entry, eviction or interruption, of any man, but not againsttortious entries, evictions and interruptions and the reason of law is solidand clear, because against tortious acts lessee hath proper remedy against thewrong-doers.

The Chief Justice than shows that the express covenant likethe implied covenant protects the lessee only against lawful disturbance ofstrangers and summarises the inconveniences, if the law should be otherwise.

1. A mans covenant without necessary words to make it suchis strained to be unreasonable, and therefore improbable to be so intended;for, it is unreasonable that a man should covenant against the tortious acts ofstrangers, impossible for him to prevent or probably to attempt preventing.

2. The covenantor who is innocent, shall be charged, whenthe lessee hath his natural remedy against the wrong-doer : and the covenantormade to defend a man from which the law defends every man, that is, from wrong.

3. A man shall have double remedy for the same injuryagainst the covenantor, and also against the wrong-doer.

4. A way is open to damage a third person (that is thecovenantor) by undiscoverable practice between the lessee and a stranger, forthere is no difficulty for the lessee secretly to procure a stranger to make atortious entry, that he may therefore charge the covenantor with an action.

13. The Rule is now firmly settled that like the expresscovenant the implied covenant protects the lessee against all disturbance bythe lessor whether lawful or not, save under a right of re-entry but as againstother persons it protects the lessee only against lawful disturbance; Nash v.Palmer (1816) 5 Mand S. 374 = 17 R.R. 364 = 150 E.R. 1088, Cranger v. Colline(1840) 55 R.R. 687 = 6 M. and W. 458 = 151 E.R. 492 = 9 L.J. Ex. 172, Young v.Raincock (1849) 7 C.B. 310 = 137 E.R. 124 = 18 L.J.P.C. 193, Sanderson v.Berwick (1884) 13 Q.B.D. 547 = 33 W.R. 77 = 53 L.J.Q.B. 559, Walis v. Hands(1893) 2 Ch. 75 = 41 W.R. 471 = 62 L.J. Ch. 586.

14. A similar view was adopted in Donzell v. Girdhari Singh23 W.R. 121 where it was stated that in the absence of any express agreement tothe contrary, a landlord is under the implied obligation to indemnify his tenantagainst ouster or disturbance of possession by his own act or by the acts ofthose who claim under him or have a right paramount to his but not against thewrongful acts of third parties. To the same effect are the decisions inVaithilinga v. Vithikinga (1892) 15 Mad. 111, Tayawa v. Gurshivappa (1901) 25Bom. 269 = 2 Bom. L.R. 1070 and Mukhter v. Sundar (1913) 17 C.W.N. 960 = 19I.C. 815.

15. In the case before us, as we have already seen, Banerjeeand Sarkar were wrongfully deprived of the lands of Daskati by Chowdhuri whohad no lawful title thereto. They had their remedy against Chowdhuri and evenif they, or after them, Singh, acquiesced in the dispossession, the defendantmight have recovered possession of the lands from her husband Chowdhuri. Consequentlythe defendant cannot successfully claim the benefit of the rule of impliedcovenant for quiet enjoyment.

16. On behalf of the defendant, the contention has next beenput forward that the plaintiff landlord is not entitled to the full rent, as therehas been a breach of the implied covenant to give possession. In support ofthis proposition, reliance has been placed upon the decision in Cos v. Cley(1829) 5 Bing. 440 = 7 L.J. (O.S.) C.P. 162 = 3 M. and P. 57, Jinks v. Edwards(1856) 11 Ex. 775 = 156 E.R. 1045, Wallis v. Hands (1893) 2 Ch. 75 = 41 W.R.471 = 62 L.J. Ch. 586, Zamindar of Vi(sic)ianagram v. Behari (1902) 25 Mad. 587= 13 M.L.J. 249, Meenakshi v. Chidambaram : (1912) 23 M.L.J.119 = 15 I.C. 711 = 1912 M.W.N. 813 and Manindra Chandra v. Narendra Chandra(1919) 46 Cal. 956 = 52 I.C. 13 = 23 C.W.N. 536. The principle deducible fromthese decisions is of no assistance to the defendant. Assume that, in theabsence of a contract to the contrary the lessor is bound, on the lesseesrequest, to put him in possession of the property, and that the lessee has agood defence to an action for rent if the lessor is not able or willing to doso on the agreed date. Holgat v. Kay (1844) 1 Car. and K. 341 = 70 R.R. 800,Rangalal v. Lala Rudra Prosad 17 W.R. 386, Bullon v. Lalit Jha 3 B.L.R. App.119, Hurish v. Mohinee 9 W.R. 582, Munnee v. Campbell 12 W.R. 149, ShyamaProshad v. Taki (1901) 5 C.W.N. 816, Pemma Raju v. Secretary of State (1910) 34Mad. 108 = 6 I.C. 727 = 1910 M.W.N. 456, Secretary of State v. Pemma Raju(1917) 40 Mad. 910 = 30 M.L.J. 575 = (1916) 1 M.W.N. 342 = 35 I.C. 254 = 3 L.W.443 and Narayana Swami v. Yerramali (1920) 33 Had. 499 = 5 I.C. 479 = 1910M.W.N. 221 it is plain that there has been no default on the part of thelandlord, for Tagore did place the tenants, Banerjee and Sarker, in possessionof all the lands of the tenure at the inception of the tenancy. There has thusbeen prima facie no breach of the implied covenant to give possession.

17. The defendant has made a desperate endeavour to escapefrom this insuperable difficulty, and, has strenuously contended that there isin law a fresh contract of tenancy constituted, whenever a tenure is brought tosale at the instance of the landlord, in execution of a decree for arrears ofrent, so that in every such successive occasion he becomes burdened with animplied obligation to place the purchaser in possession, as if there was a newdemise, the commencement of a, new term.

18. This argument is manifestly fallacious and is based on afiction which has no counter part either in the actual intention of the partiesor in recognised principles of law. When in execution of a decree for arrearsof rent, a tenure is exposed for sale, the landlord does not intend that in thevery process of sale, the tenure should be extinguished and a new contract oftenancy created between him and the successful bidder. S. 159 of the BengalTenancy Act contemplates a real-sale, a real purchase, in other words atransmission, not an extinction of interest. The purchaser acquires theexisting tenure, subject to protected interests, but with power to annulincumbrances thereon, by recourse to the prescribed procedure.

19. The landlord cannot consequently be called upon by thepurchaser to place him in possession by expulsion of a trespasser who may havedispossessed the defaulter. If such trespasser has been in possession for lessthan 12 years, be has acquired no title and may be ejected by the purchaser bya suit; on the other hand if the trespasser has acquired a statutory titleagainst the defaulter by lapse of time, he is still an incumbrancer and isequally liable to be ejected by a suit after annulment of the incumbrances:Ishan v. Safatullah A.I.R. 1922 Cal. 331, Munsahali v. Arsadullah (29), Satishv. Munjana (1912) 16 C.L.J. 539 = 14 I.C. 349 = 16 C.W.N. 831, Bhushan v.Srikantha (1918) 45 Cal. 756 = : 21 C.W.N. 155 = 33 I.C. 957= 23 C.L.J. 485, Monmotha v. Anath A.I.R.1921 Cal. 754, Gokul v. Debendra(1911) 14 C.L.J. 136 = 11 I.C. 453. When the purchaser is armed with suchpowers, there is no reason why he should have authority at his choice, toenforce the intervention of the landlord. We are not unmindful that there is adictum of Rampini, J. in Kali Nath v. Trailakhya (1899) 26 Cal. 315 = 3 C.W.N.194 which, if generalised, may lend apparent support to the theory that by thesale of a tenancy a new contract is created between the auction-purchaser andthe landlord.

20. This view however was not adopted by Banerjee, J. in thecase mentioned, and was expressly repudiated by Sir Francis Maclean, C.J., andGeidt, J. in Narendra v. Muniraddi (1903) 35 C.L.J. 209. The dictum wassubsequently explained away by Rampani, J. himself in his judgment in the FullBench Case of Lal Gopal v. Monmotha Lal (1905) 32 Cal. 258 = 9 C.W.N. 173.

21. We hold accordingly that in the case before us no newtenure was created, either on the 20th March, 1889 (when Singh purchased) or onthe 16th April, 1894 (when the defendant purchased) and it is significant thaton neither occasion did the purchaser request the landlord to give possessionby the eviction of Chaudhuri.

22. Finally the defendant has urged, that the plaintiff isbound to allow abatement of rent for the Daskati Lands, as the relationship oflandlord and tenant no longer subsists between the parties in respect thereof.This argument is based on the erroneous theory that the adverse possession ofChowdhury, which has extinguished the interest of the tenure holder, has alsooperated to extinguish the title of the landlord.

23. It is now well-settled that the possession of atrespasser, during the continuance of a lease does not become adverse againstthe lessor, the lessor is in possession by receipt of rent from his lessee; solong as such rent is not intercepted by a trespasser he cannot be said to havebeen dispossessed. Hazra v. Kunja (1917) 25 C.L.J. 635 40 I.C. 271 = 21 C.W.N.1001. This rule, first enunciated by Peacock, C.J., in Davis v. Kazu Abdul Hami8 W.R. 55 and shortly afterwards independently recognised by Norman, J., inHaranath Rev v. Indu Bhushan 8 W.R. 135 was re-affirmed by Peacock, C.J., afterelaborate discussion in Umesh v. Raj Narain 10 W.R. 15.

24. We may usefully re-call here the following observations:The difficulties and dangers of Zamindars would be great, if they were bound tosue for declaration of right whenever they should discover any person otherthan the tenant in possession of any part of the land included in a putnitenure. They would have no means of knowing, and no means, that I am aware of,of compelling either the tenant or the trespasser to inform them whether theperson in occupation was there with the consent of the holder of the tenure oran under-tenure derived from him or merely as a trespasser. To hold that agrantor is bound to sue immediately a trespass is committed upon his tenant andthat he will be bound by limitation if he does not sue within 12 years from thetime that the trespass was first committed would open such a door to fraud andcollusion between tenants and trespassers that the zamindar or owner when heseeks to enforce the payment of his rent would often find trespassers, whom inconsequence of limitation, he could not get rid of, in possession of thegreater portion of the tenures and who as soon as he should have defeated theland owner by the plea of limitation, would probably share the spoil with thedefaulting tenant. Instead of granting under-tenures, tenants would allow theirfriends and relations to trespass upon their tenures, and thus protect them bylimitation in the event of default in payment of their rent.

But even if the grantor could, daring the existence of theunder tenure have maintained such an action against a trespasser upon his undertenant, it is clear that a purchaser of the under-tenure could not do so beforethe sale; and if not bow could the grantor of an under tenure sell theunder-tenure in the state in which he created it, if the purchaser is to bebarred by limitation against persons who had encroached upon the under-tenant.

25. The principle is applicable, as is clear from thejudgment of Peacock, C.J. whether the lease, during the subsistence whereof thedispossession of the tenant takes place, is for a term or is in perpetuity; seeHareck Chand v. Bejoy Chand (1905) 2 C.L.J. 87 = 9 C.W.N. 795.

26. Reference may also be made to Bejoy Chander v. KaliPrasanna (1879) 4 Cal. 327, Krishna Gobind v. Hari Charan (1883) 9 Cal. 367 =12 C.L.R. 19, Sheo Sahay v. Luckmeswar (1884) 10 Cal 577, Sarat Sundari v.Bhoboo Prosad (1886) 13 Cal. 101, Kiswar v. Kali Sanker (1906) 10 C.W.N. 343,and Baikantha v. Chaitanya (1920) 57 I.C. 994 which are in harmony with theopinion expressed by Peacock, C.J., See also Thamman v. Maharaja ofVizianagaram (1907) 29 All. 593 = 1907 A.W.N. 185 = 4 A.L.J. 725, Harnanma v.Dusandhi (1920) 1 Lab. 210 = 56 I.C. 733 = 112 P.L.R. 1920, Giridhari v.Umadajan A.I.R. 1921 Lah. 17.

27. The contrary view indicated in Brindaban v. Bhupal 17W.R. 377 and Prosanamoyee v. Kalidass 9 C.L.R 347, though supported by SunderIyer, J. without the concurrence of Abdur Rahim, J. in Ambalavana v.Singaravelu (1921) 1 M.W.N. 669 = 15 I.C. 146, cannot be justified on principleand is opposed to what is regard-48 by Lord Alverstone, C.J. as wellestablished doctrine in Walter v. Yalden (1902) 2 K.B. 304 = 51 W.R. 46 = 71L.J.K B. 693. See also Poolc v. Griffith (1864) 15 Ir.C.L.R. 270.

28. The position may be different where therefore successiveleases for terms, and much may be urged in support of the contention that if onthe actual termination of one of the leases, the landlord grants a fresh leasewithout exercising his right to sue for ejectment forthwith vested in him, timewill begin to run against him from that date. Ahmadi v. Mahasay Tarak BegamNath (1913) 18 C.L.J. 399 = 21 I.C. 233 = 17 C.W.N. 1176, EcclesiasticalCommissioners of England v. Rooe (1880) 5 App. Cas. 736 = 29 W.R. 159 = 49 L.J.Q.B.771, Kenedy v. Woods (1868) 2 I.R.C.L.436.

29. There is plainly no real analogy between such ahypothetical case and the case before us where the dispossession took placeduring the continuance of a permanent lease. The adverse possession ofChowdhuri, however operative it may have been as against Banerjee, Sarkar,Singh and the defendant, can in no sense be treated as effective to extinguishthe title of the plaintiff as landlord. There is thus no foundation for theview that the defendant has ceased to be the tenant of the plaintiff in respectof the lands of Daskati.

30. But if the claim for abatement is thus found beset withinextricable difficulties when examined from different standpoints, there is astill graver objection which must be surmounted before it can be successfullymaintained. We have seen that on the 24th February, 1887 an amicable settlementwas effected between Tagore, the landlord on the one hand, and Banerjee andSarkar, the tenants, on the other; the result was that the tenants agreed thatthey would not be competent to apply for abatement of rent on any groundwhatever in respect of the area of 4300 Bighas found by measurement to be intheir occupation. This was clearly a valid agreement between the landlord andthe tenants and the tenancy was thenceforth to be field subject to thiscontention, it was on this very ground that Morris and Banerjee, JJ. overruledthe claim for abatement put forward by Nilkantha Singh. The defendant asexecution purchaser, does not in this respect, stand in a position of greateradvantage than Nilkantha Singh who also had purchased at a sale for executionof a rent decree. Thus apart from the principle of res judicata, the decisionof Wilson and Field, JJ. in Ishan Chander v. Chandra Kantha 13 C.L.R. 55 and ofMorris and Banerjee, JJ. in Satyendra v. Nilkantha (1894) 21 C. 383 treated asprecedents binding on this Court, to negative the claim for abatement. But aswe have also shown, the claim cannot otherwise be sustained on the merits.

31. The result is that these appeals must be decreed and thedecree of the Subordinate judge in each suit varied so as to allow theplaintiff rent of plots C., D. and D-1 depicted in the map of the Commissioneras lands of Daskati included in the tenure held by the defendant.

32. The plaintiff will be entitled to the costs of each ofthese appeals under the Letters Patent. The hearing fee will be assessedaccording to the scale, in the appeal valued above Rs. 5.000, and at Rs. 150 inthe other appeal. In respect of the bearing before the Division Bench, as thecross-objection of the plaintiff in the first suit has succeeded, be will beentitled to the costs thereof and we assess the hearing fee at Rs. 150.

33. As, the appeal of the plaintiff in the second suit hasalso succeeded, he will be entitled to the costs thereof but no separate hearingfee will be allowed. The order of the first Court as to proportionate costswill be left undisturbed. But in determining the costs in all the Courts theamount as settled by this judgment will be adopted as the basis. The exactamount now decreed will be calculated by the parties and inserted in thedecree. Liberty reserved to speak to the Minutes.

Newbould Edward Brooks, J.

34. I agree.

H.G. Pearson, J.

35. I agree.

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Chandi vs. KatyaniDebi (27.02.1922 - CALHC)