Authored By : S.C. Ghose, C.H. Hill

S.C. Ghose and C.H. Hill, JJ.

1. These two appeals arise out of two suits for rent.

2. The plaintiff in both these cases is the zemindar ofPergunnah Haveli, within which the properties (Lot Saefgunge and Lot Mirzapore)in respect of which rent is claimed are situate. Both these properties had beenleased to certain individuals, described as the Iranees, in patni under twodifferent leases.

3. In execution of a decree upon a mortgage bond executed bythe Iranees, the plaintiffs purchased the two patnis and some other propertieson the 2nd February 1891 (the sale being confirmed on the 16th April 1891, 21stMagh 1298 mulki), and obtained symbolical possession in November 1891. Theprincipal defendant in these two suits, Babu Chutterput Singh, had purchasedthe same properties in execution of another decree, upon an earlier mortgageagainst the Iranees on the 8th March 1890, and in dun course obtainedpossession through the Court.

4. It appears that shortly after the plaintiff was put intoformal possession of the two patnis and the other properties, he attempted torealize rent, and thus to obtain actual possession; and in this he was opposedby Chutterput, the result being the institution of a proceeding by theMagistrate under Section 145 of the Code of Criminal Procedure on the 12thSeptember 1892. The Magistrate, after enquiry, found that Chutterput was inpossession, and accordingly confirmed him in such possession on the 13th March1893 (1st Chait 1300 mulki).

5. The present suits were brought on the 21st September1893, and they are for recovery of rent on account of the two patnis Saefgungeand Mirzapore, for the years 1298, 1299 and 1300 mulki after allowing credit tothe defendant Chutterput for certain sums received from him. Both the Iraneesand Chutterput Singh were made defendants; though the rents were claimedagainst the latter only, upon the ground that he was in possession of thepatnis.

6. Both the suits have been dismissed by the Court belowupon the ground that in consequence of disputes between the two parties as tothe ownership of the properties leading to violent disturbances and breaches ofthe peace, the defendant Chutterput could not be regarded as having been inundisturbed possession of the two patnis during the term for which the rentsare claimed; that the plaintiff interfered with the peaceful possession andcollection of rent by the defendant, and himself realized some rent from theraiyats; that he (the plaintiff) had treated, the defendant as a trespasser andcannot now be allowed to treat him as a tenant; and that the plaintiffs properremedy is not a suit for rent but for damages or mesne profits.

7. Against this decree, the plaintiff has preferred the twoappeals now before us. The appeal No. 341 relates to Saefgunge, and the otherappeal 342 to Mirzapore.

8. It seems to us that the two cases do not stand upon thesame footing, as erroneously supposed by the District Judge. He has mixed upthe facts of the two cases and treated them as one, and it is owing to thisthat he has fallen into a serious error, as will be presently shewn, as regardsone of the cases. No doubt, there are some matters common to both the cases, whichhave already been noticed; but there are some distinctive features whichdifferentiate the two cases.

9. We propose therefore to deal with the cases separately.

10. But before we do so, it would be just as well to referto one point which has been raised before us by the learned Vakil for thedefendant-respondent in both the appeals. It is this: that the plaintiff doesnot treat the defendant as the rightful patnidar, and yet sues him for rentupon the simple ground that he is in possession of the patnis, and thereforethe plaintiff has no cause of action. It is unnecessary to discuss this point,because the plaintiff has put in a petition in both the cases asking that theplaints be amended so as to make it clearly appear that the defendant is the realpatnidar of the two properties in respect of which the rent has been claimed,and upon this being done the learned Vakil for the defendant has waived thepoint.

11. Now first as to the appeal No. 341.

12. It appears upon the evidence that Lot Saefgunge consistsof 19 mouzahs, of which only one mouzah, Luchmipore, was held in khaspossession, the rest being held by darpatnidars. The annual rent roll of thewhole property is about Rs. 13,000, and the gross collection of Luchmipore isonly Rs. 875. It has no doubt been said generally by some of the witnesses thatthere was a great deal of dispute, and many cases arose between the parties inconsequence of the interference of Rai Dhunput Singh with the collection ofrent by Chutterput Singh in the Purwaha estate (Saefgunge being a partthereof), and the proceeding before the Magistrate under Section 145 of theCode of Criminal Procedure embraced among several other properties Saefgunge aswell; but so far as any specific evidence is to be found bearing upon thequestion of actual interference with the possession of that property, itappears that there was no case either civil or criminal (see the evidence ofthe witness Mahabeer). The rent from the darpatnidars was realized byChutterput; but the witness Korbanally, the patwari called by the defendant,says that both in the years 1299 and 1300 Chutterputs men could not collectmore than Rs. 150 from Luchmipore owing to the interference of Dhunput, and thecollection made by him. The witness however does not produce his collectionpapers shewing what he really collected, and he admits that he has not givencredit to the raiyats for what they paid to Dhunput Singh. We think that theevidence, so far as it refers to Lot Saefgunge, is wholly insufficient to shewthat there was any real, if any, interference on the part of Dhunput Singh withthe possession of the painidar, so that he is not in justice entitled torecover the rent claimed. It seems to us to be clear, upon an examination ofthe evidence, that the ground upon which the District Judge has disallowed theclaim of the plaintiff has no application to this case. There is no otherdefence to this action except that which was accepted by the District Judge.And it follows, therefore, that the plaintiff should obtain a decree for therent claimed in this case. The decree of the Court below will accordingly bereversed and this appeal decreed with costs.

13. Regular Appeal No. 342:

We now proceed to deal with the other appeal (342), whichrelates to Lot Mirzapore, and which we think stands upon a somewhat differentfooting. In Lot Mirzapore, several of the mouzahs have also been let indarpatni, and three mouzahs only are held khas. There is no evidence as to anyinterference by Dhunput with the collection of rent in one of these threemouzahs, Tangha Majna; but there is evidence shewing such interference inrespect of the other two mouzahs, Bishenpore and Purmanandpur. The evidencediscloses that after the plaintiff had obtained symbolical possession in November1891, there was not only the proceeding before the Magistrate under Section 145in regard to the possession of Mirzapore, but Dhunput Singhs tehsildarscollected some rent from some of the raiyats of the said two mouzahs betweenAughrain 1299 and Aughrain 1303 mulki. The rents actually collected appear tobe small, but still it is impossible to say that there was not an activeinterference on the part of Dhunput with the enjoyment of possession byChutterput, so far as those two mouzahs are concerned. Then we have the factthat Dhunput Singh, so soon as he made his purchase, asserted his title to thewhole of Mirzapore and the other properties comprised in the Purwaha estate,and appointed an European Manager and a large number of burkandazes evidently withthe object of overawing the raiyats of the whole estate and compelling them topay their rents to him. And the result was the institution of several criminalcases though no doubt there is no evidence of any such case in connection withMirzapore itself. It may be possible that Chutterput had no quiet enjoyment ofany of the properties until his possession was formally confirmed by theMagistrate on the 13th March 1893: but of this there is no distinct evidence,and we find Chutterput asserting before the Magistrate that he was inpossession of the whole of the properties.

14. Upon these facts, two questions arise: (1) whether therewas an eviction of the tenant by the act of the landlord so that the rent whichwould otherwise be due to the latter should be suspended during the period ofsuch eviction; (2) whether the rent due upon the Lot Mirzapore may beapportioned, and a proportionate rent allowed to the landlord in respect ofsuch portion of the property as to which there was no interference proved on hispart.

15. In the case of Upton v. Townend 17 C. B. 30 Jervis C.J.,with reference to the question what constitutes eviction, expressed himself asfollows:

16. It is extremely difficult at the present day to definewith technical accuracy what is an eviction. Latterly, the word has been usedto denote that which formerly it was not intended to express. In the languageof pleading, the party evicted was said to be expelled, amoved, and put out.The word eviction---from evincere, to evict, to disposses by a judicialcourse---was formerly used to denote an expulsion by the assertion of a titleparamount, and by process of law. But that sort of eviction is not necessary toconstitute a suspension of the rent, because it is now well settled that, ifthe tenant loses the benefit of the enjoyment of any portion of the demisedpremises by the act of the landlord, the rent is thereby suspended. The termeviction is now popularly applied to every class of expulsion or amotion.Getting rid thus of the old notion of eviction, I think it may now be taken tomean this---not a mere trespass and nothing more, but something, of a grave andpermanent character done by the landlord with the intention of depriving thetenant of the enjoyment of the demised premises. 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.

17. In Edge v. Boileau L. R. 16 Q. B. D. 117 where there wasa covenant on the part of the lessor for quiet enjoyment, and it appeared thathe had sent a notice to the sub-tenants desiring them not to pay their rents tothe lessee, but the lessor himself, and threatened them with legal proceedingsin default of non-compliance with such notice, it was held that this was asubstantial disturbance of the lessees quiet enjoyment of the propertydemised, and that the lessee was entitled to sue for damages for breach ofcovenant of quiet enjoyment.

18. In Kadumbinee Dossia v. Kasheenauth Biswas 13 W. R. 338where the tenant defendant was dispossessed of the land leased to him, by athird party to whom the landlord (plaintiff) had given a lease of the sameland, and assisted him in the dispossession, it was held that the landlord wasprecluded from suing the tenant for rent during the period of suchdispossession, though the latter had recovered a decree for possession withmesne profits.

19. In Kristo Soondur Sandyal v. Chunder Nath Roy 15 W. R.230 the landlord, though he had not actually ejected the lessee (a middleman),had interfered in the collection of rents, and encouraged the raiyats todeposit their rents with him as superior landlord, and collected their dakhilaswith as view to ascertain how far the arrears due from the lessee were due tothe nonpayment of rent by the raiyats, the Court held that the landlord was notentitled to recover the rent sued for; and Bayley, J., in delivering thejudgment of the Court observed as follows:

20. Now the real right of the zemindar, to receive rentsfrom the farmers depends upon his securing to the latter quiet possession, andgiving him proper and lawful means of realizing rents from the raiyats. In thepresent case, it is clear from the findings of the Lower Appellate Court, asquoted above, that the quiet possession and proper and legal means ofcollecting rents have been directly interfered with.

21. On the subject of eviction and apportionment of rent,Gilbert in his book on Rents, on p. 178, says as follows:

22. But if the lessor takes a lease of part of the land, orenters wrongfully into part, there are variety of opinions whether the entirerent shall not be suspended during the continuance of such lease or tortiousentry. Some have held that there shall be no apportionment in either case, butthat the whole should be suspended; for this reason, I suppose, because, by thedemise, every part of the land was equally chargeable with the whole rent; andtherefore the lessor shall not by his own act discharge any part from theburden during the continuance of such contract. This, indeed, may be a goodreason why the whole rent service shall be suspended if the lord or lessordisseises or ousts his tenant or lessee of any part of the land; because thisis a wrongful act to which the tenant consented not, and, if it were notattended with a total suspension of the rent, until he makes restitution of theland, it would be in the power of the lord or lessor to resume any part of theland against his own engagement and contract; and so by taking that which liesmost commodious for the tenant, render the remainder in effect useless, or puthim to expense and trouble to restore himself to such part by course of law.Therefore to prevent these inconveniences, and that no man might be encouragedto injure or disturb his tenant in his possession when, by the policy of thefeudal law, he ought to protect him and defend him, these resolutions have beenand so the law is at this day, that such disseisin or tortious entry suspendsthe whole rent, and the lessee or tenant is discharged from the payment of anypart of it till he be restored to the whole possession.

23. In Neale v. Mackenzie 1 M. & W. 747 (763) where alessee to whom one (sic) had been demised, found upon his entry that eight ofthe (sic) possession of another party under a prior lease from the land (sic)out of possession therefrom, and where, notwithstanding (sic) trained the goodsof the lessee for the whole rent due upon the lease (sic) the lessee such fordamages on account of such distraint, Lord Denman, C.J., in delivering thejudgment of the Court, among other matters, with reference to the question ofapportionment of rent, observed (sic) as follows:

24. In the case before the Court, which is not the case of ademise by indenture, the rent is reserved in respect of all the land professedto be demised and to be issuing out of the whole and every part thereof; and asthe plaintiff, as to a portion of the land comprised in the demise (which mightbe great or small as far as the principal is concerned) in the demise (whichmight be great or small as far as the principle is concerned) has taken ninterest, and had no enjoyment and is not bound by any estoppel, we are ofopinion that the distress made by the defendant is not justifiable, either inrespect to the whole rent reserved or any portion of it.

25. In the case before Gopan(sic) v. Lalla Gobind Pershad 12W. R. 109 where a tenant sued for rent had been evicted from a portion or theland) demised by a title paramount, Peacock, C.J., in delivering the judgmentof the Court thus expressed himself:

26. According to the English law if the lands demised beevicted from the tenant, or recovered by a title paramount, the lessee isdischarged from the payment of the rent from the time of such eviction, and ifhe is evicted from part, the rent is to be diminished in proportion to the landevicted. It is laid down in Bacons Abridgment, Tit. Rent (M) where a lessorenters forcibly into part of the land, there are variety of opinions whetherthe entire rent shall not be suspended during the continuance of such tortiousentry, and it seems to be the better opinion and the settled law at this day,that the tenant is discharged from the payment of the whole rent till he berestored to the whole possession, that no man may be encouraged to injure ordisturb his tenant in his possession, whom by the policy of the law he ought toprotect and defend: and it has been held that when a lessee is evicted bytitle paramount to that of his lessor, an apportionment of rent may take placein an action brought for the rent. It appears to me that the onus is on thelessor, who claims to be entitled to an apportionment to show what is the fairrate of the lands out of which the tenant was not evicted.

27. The principles to be gathered from these cases are,first, that where the act of the landlord is not a mere trespass, but somethingof a grave character interfering substantially with the enjoyment by the tenantof the property demised to him, there is a suspension of rent during suchinterference, though there may not be an actual eviction. And, second, that ifsuch interference be in respect of even a portion of the property, there shouldbe no apportionment of the rent, the whole rent being equally chargeable uponevery part of the land demised.

28. Some other cases upon the same subject were quotedbefore us by the learned Vakil for the appellant, but they do not go anyfurther than this, that though by entry upon the land demised the rent issuspended, yet where there is no eviction but a mere trespass, there is nosuspension of rent, and that the mere discontinuance of rent by the raiyatsdoes not amount to dispossession see Hunt v. Cope 1 Cowp. 242, Tarini MohunMozumdar v. Gunga Prosad Chuckerbutty I.L.R. 14 Cal. 649 [LQ/CalHC/1887/66] , Obhoya Charan Bhooiav. Koilash Chunder Dey I.L.R. 14 Cal. 751 [LQ/CalHC/1887/52] and Woodfall on Landlord and Tenant,p. 425.

29. We think that, in the circumstances of this case, theact or acts of the landlord were not mere acts of trespass, but something of agraver character, substantially interfering with and disturbing the enjoymentand possession of the property by the patnidar, and that there ought to be asuspension of rent during the period of such interference.

30. The period during which the landlord is not entitled inour judgment to recover rent is from Aughrain 1299 to Aughrain 1300 mulki; andwe think that the rents which fell due during this interval of time, accordingto the kists laid down in the patni lease should, subject to what we shallpresently say with regard to apportionment, be disallowed.

31. As to the question whether there should be anapportionment of rent in this case (the actual interference by the landlordbeing only with respect to two of the several monzahs constituting the paint),it appears that, though the whole patni rent may be taken upon the terms of thepatni grant to be reserved upon every part of the land comprised in the patni,so that in default of payment by the patnidar of any part of the rent, thewhole patni is liable to be brought to sale, yet the rent payable for each ofthe mouzahs was separately assessed. The true principle upon which anapportionment is not ordinarily allowed is, we apprehend, that every part ofthe property demised being equally chargeable with the whole rent, it is notpossible to determine what should be the proper apportionment when the landlordinterferes with the possession of the tenant with respect to a part only, andthat the landlord should not be permitted to resume any part of the landdemised which may be most advantageous to him. In the present case, so far asthe various mouzahs which were let out in darpatni are concerned, thecollection of rent by the plaintiff could have been only from the darpatnidarsand not from the raiyats, and it appears upon the evidence that the darpatniswere not interfered with, nor was there any interference in respect of one ofthe three khas mouzahs. In this view of the matter, and as the rents payable onaccount of the two mouzahs Bishenpore and Parmanandpore (also called Purmanporein some of the documents) as to which there was an interference by the landlordare ascertainable from the patni lease, we think that the plaintiff is entitledto recover so much of the rent reserved by the patni lease as is assignableupon the property other than the two mouzahs Bishenpore and Parmanandpore. Therent in respect of these two mouzahs should be suspended and disallowed duringthe period already referred to.

32. It was, however, contended before us that if thelandlord is entitled in this case to an apportionment of rent the tenant maywell claim an equitable set-off for damage caused to him by reason of theunjust interference by the landlord. It is impossible in this case to determinewhat may be the amount of damage which the defendant sustained in respect ofthe two khas mouzahs, and what, having regard to the acts and conduct of thelandlord generally in regard to the whole Purwaha estate, is the extent ofequitable set-off which should be allowed to him. And we think that thequestion, what may be the extent of damage sustained by the defendant, shouldbe left to be determined in a separate action framed for that purpose.

33. Upon these grounds, we disallow the plaintiff the rentspayable for the two khas mouzahs Bishenpore and Parmanandpore, and which felldue according to the patni lease between Aughrain 1299 and Aughraiu 1300 mulki,and save and except this, allow the rest of the claim.

34. In the circumstances of the case, we think that eachparty should bear his own costs both in this and the lower Court.

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Dhunput Singh vs.Mahomed Kazim Ispahain and Ors.(10.07.1896 - CALHC)