Thankerton, J.

1. These are two-consolidated appeals from two decrees of the High Court of Judicature at Fort William in Bengal, dated 12th June 1928, which reversed a decree of the District Judge of Chittagong, dated 27th June 1925, modifying a decree of the Subordinate Judge of Chittagong, dated 14th June 1924, and dismissed the suit, in which the appellant was plaintiff, with costs. The appellant is the owner of a Noabad taluk in the District of Chittagong. At the time of the cadastral survey operations of 1895 Homar Ali, the father of the respondent, was recorded as holding the tenancy of two jotes, Nos. 83 and 98, in the survey records. Homar Ali died in 1902, leaving a widow, a son (the respondent) and four daughters.

2. In the present suit, which was instituted on 15th April 1920, the appellant seeks to recover from the respondent rent, for the year 1326 B. S. (1919-20) under a kabuliyat dated 11th October 19-17, which related to part of Jote No. 83, but it will be necessary to relate the events which led up to the execution of the kabuliyat by the respondent. In 1910 the appellant instituted a suit for possession of Jote No. 83 against Homar Alis widow and the respondent and obtained a decree in his favour in 1912. He executed this decree in 1913. In 1916 he brought a similar suit for possession of Jote No. 98 against not only the widow and the present respondent, but also against Homar Alis four daughters as well. In October 1917, this suit was compromised as between the appellant and Homar Alis widow and the respondent, the daughters being first excluded from the category of defendants on the petition of the appellant; a solenama was then executed by the appellant, the widow and the respondent, under which, out of the 20 drones odd of which the holding consisted, the widow and the respondent were to hold 11 drones odd under the appellant at a rent thereby fixed and the appellant was to get khas possession of the balance of 8 drones odd. The respondent further agreed to pay a sum of Rs. 1,400 in respect of the appellants costs and mesne profits by installments and executed a mortgage therefor. In conformity with the compromise the appellant obtained a decree dated 5th December 1917. It was part of the settlement of that suit, which related to Jote No. 98, that the respondent should execute the kabuliyat relative to Jote No. 83, dated 11th October 1917, already referred to, which forms the basis of the present suit.

3. By this kabuliyat the respondent took a be-kaemi (non-permanent) settlement as a yearly tenant of 10 drones odd out of the 14 drones 5 kanis odd, which made up Jote No. 83 and which were stated to be in the khas possession of the appellant, and agreed to pay an annual rent of Rs. 50 and 1,858 arhis 9 seers of paddy or Rs. 1,239-1-0, the price thereof. In January 1920, the respondents sisters brought a suit against the present appellant and respondent for a declaration of their right and confirmation of their possession, to the extent of their share as co-heirs of Homar Ali in Jote No. 83.

4. The present suit was brought in April 1920, and the relief claimed by the appellant is a decree for Rs. 2,048-14-0, made up of : (1) the market price of 1,858 arhis 9 seers of paddy, with damages thereon at 25 per cent; and (2) cash rent of Rs. 50, with damages at 25 per cent, and he further claims all other or further reliefs which the Court may think fit and proper. The leading defence was that the kabuliyat was obtained by the appellant from the respondent by fraud and undue influence; this defence was rejected by the Subordinate Judge and the District Judge and is no longer in issue. The remaining defences were that the appellant had failed to put the respondent in possession of the subjects let and was therefore not entitled to rent, and that in any event, the appellant was not entitled to the paddy rent at market price, but only at the price fixed by the kabuliyat and was not entitled to damages.

5. The suit by the respondents sisters and the present suit were before the same Courts. On 13th June 1924, the Subordinate Judge gave decree in favour of the plaintiffs in the former suit and on 14th June he gave the appellant decree in the present suit for Rs. 50 cash rent and Rs. 1,589-4-0, the market price of the paddy, with damages at the reduced rate of 6 per cent. He held that the respondent knew, when he executed the kabuliyat, that the whole 16 annas would not be available, and that he could not turn round and say that because the appellant could not put him in possession of the whole 16 annas he was not liable to pay rent or that the kabuliyat was not binding on him. The appellant appealed against the decree in the sisters suit and both parties appealed against the decree in the present suit, to the District Judge.

6. The District Judge delivered judgment on the appeals in the present suit on 27th June 1925. The learned Judge held that the onus was on the respondent to prove that ho did not get actual possession of any portion of the land and he declined to accept the respondents evidence without corroboration; he therefore held that the respondent got possession of all the land of the kabuliyat. Differing from the Subordinate Judge he held that the paddy rent was fixed at the price in the kabuliyat, and he increased the rate of damages to 25 per cent. Subject to these modifications, he decreed in the same terms as the Subordinate Judge.

7. On 19th August 1925, the District Judge affirmed the decree of the Subordinate Judge in the sisters suit against which decision the present appellant appealed to the High Court. In the present suit both parties appealed to the High Court. The appeals in both suits were heard together and one judgment dealing with both suits was delivered by the High Court on 12th June 1928. In the sisters suit the judgments of both lower Courts were affirmed, but in the present suit the judgments of the lower Courts were reversed and the appellants suit was dismissed on the ground that the onus was on the appellant as landlord to prove that he had put the tenant in possession--therein differing from the District Judge -and that, in view of the decision in the sisters suit it was not possible for the appellant to show that he had put the respondent in possession of the share in which the possession of the respondents sisters had been confirmed, there being no suggestion anywhere that the latter had at any time been actually dispossessed in respect of that share. The decree of the High Court in the sisters suit has not been appealed from, and is now final, but the appellant has appealed against the decree of dismissal of the present suit.

8. The appellant maintained that the decision of the District Judge was right; he did not press his claim for the market price of the paddy rent. He contended that the District Judge rightly put the onus on the respondent of proving non-delivery of possession, and claimed that the District Judge had found as a fact that the respondent was in actual possession of all the land of the kabuliyat, such finding being final and binding under Section 100, Civil P. C. The passage founded on in the judgment of the District Judge is as follows:



"The question is whether the appellant" (i.e. the present respondent) "was given actual possession so as to enable him to cultivate it. Such possession is quite distinct from the constructive possession of a female cosharer, which was all that was necessarily in issue in the other suit. The onus is on the appellant to show that he did not get actual possession of any portion of the land. On this point there is only defendants uncorroborated evidence. He says: "My fathers heirs did not allow me to take possession of the lands covered by the patta. We went to Bharat Babu and Jogesh Babu and told them that I could not get possession of the lands. The lands were in possession of myself and my fathers other heirs. I got no possession of lands outside those which were already in my possession." If he had stated that there had been partition among himself and his sisters and that they remained in possession of their shares, his case would have been at least intelligible, but he does not say so, and, if he had, I should not have believed him without corroboration. I hold that he got possession of all the land of the kabuliyat."

9. It is clear that the finding in the concluding sentence is based on the failure of the present respondent to discharge the onus of proof which the District Judge held to be incumbent on him, and is not a finding on positive evidence. Their Lordships are unable to agree that the onus was on the tenant in the present case. In their opinion, where there is no dispute as to the identity of the subjects let, but the tenant denies that he has ever got possession of the subjects, it is for the landlord to prove that he has discharged his obligation to put the tenant in possession before he can enforce the tenants obligation to pay rent. The cases cited by counsel for the appellant were either cases where the tenant had already paid rent under the lease or where the tenant claimed that certain subjects, of which he had not got possession, were within the subjects let, which the landlord denied. In these cases the onus would primarily be on the tenant: Durga Prasad Singh v. Rajendra Narayan Bagchi [1913] 41 Cal. 493 and Arun Chandra Singha v. Bhagaban Chandra Roy Choudhury A. I. R. 1931 Cal. 537. It was not proved in the present suit that the respondent had paid a previous years rent.

10. But further their Lordships are of opinion that the District Judge errad in treating the constructive possession of a female cosharer as irrelevant. The landlord must not only show that the tenant is in possession of the subjects of the lease, but that possession was attributable to the lease, or might be so. But in the present case it is now certain that possession of the subjects must be attributed--to the extent of their 9 annas 4 pies share--to the sisters possession for the decree in their favour declares their right and confirms their possession thereof if they were not in possession and required an order for possession, a claim to a mere declaration would not be competent, in view of the proviso to Section 42, Specific Belief Act. Even if they were not in actual possession, the sisters right to such share in the subjects is established, and the appellant could not have given possession to the respondent of any part of the sisters interest, which was an undivided share and affected the whole of the holding.

11. Their Lordships are therefore of opinion that the respondent has not been given possession under the kabuliyat of the land thereby let, and that the appellant is not entitled to recover the rent as claimed. But the appellant maintained alternatively that he was entitled to the rent claimed, subject to an abatement in respect of the sisters share, of which he was unable to give possession under the kabuliyat.

12. Admittedly such a claim was made for the first time by the appellant at the hearing of this appeal. It is incidentally referred to by the respondent in ground 20 of his memorandum of appeal to the District Judge, and is nowhere else referred to, not even in the appellants case.

13. Their Lordships agree with the conclusion of the Subordinate Judge on the evidence that the respondent got possession of that share of the land that was available for possession apart from the sisters share; indeed, this admission is involved in the respondents own evidence. While this case for an abated rent should have been raised and investigated along with the other questions in the case, their Lordships are of opinion that it would be an injustice if the appellant is prepared ,to submit to the penalties of his failure to raise it earlier, that the respondent should escape from payment of rent in respect of the possession which he can alone attribute to the kabuliyat.

14. The position is somewhat unusual. Jote No. 83 consisted of 14 drones odd; of the 16 annas interest therein the respondents sisters are entitled to a 9 annas 4 pies share under the decree of 1928, whereas under the decree of 1912 the respondent and the widow, though equally heirs of Homar Ali, have no share as such in the jote, and the appellant has right to the balance of the 16 annas.

15. The kabuliyat dealt with 10 drones odd out of the 14 drones odd, and one Asadali has obtained settlement of the remaining 4 drones odd from the appellant. Their Lordships are not satisfied that they have before them all the material on which to decide on the proper amount of the abatement. For instance it may depend on the circumstances whether the rent under the kabuliyat should be apportioned as if the sisters had a 9 annas 4 pies interest in the land of the kabuliyat, or whether the 16 annas interest in the whole 14 drones of the jote should be apportioned and the whole 4 drones, which were reserved by the appellant from the kabuliyat, should be treated as part of the appellants share of the 16 annas interest in the whole jote. If this were so, it might be that the sisters would be entitled to a larger share in the 10 drones. Accordingly their Lordships are unable to dispose of the appellants claim for an abated rent, and, in accordance with the appellants request, if their Lordships should take that view, the case will be remitted for the purpose of investigating and deciding what is the proper abatement to make on the rent under the kabuliyat for the year 1919-1920 in respect of the sisters interest as heirs of Homar Ali in Jote No. 83 and for a decree for the rent after deduction of such abatement.

16. Accordingly the appeal should be allowed, but the appellant must pay the costs of the appeal, as he has failed in the issues raised in the case on appeal. The decrees of the Courts below should be set aside, and the case should be remitted to the High Court as above stated leaving the costs already incurred below to be dealt with by that Court. Their Lordships will humbly advise His Majesty accordingly.