1. This is an appeal by the first defendant in a suit forrecovery of minimum royalty and other dues under a mining lease granted by thepredecessor of the plaintiffs on the 28th Septembers 1901. The suit wasinstituted on, the 6th July 1917 and the claim covered the period of six yearsbetween the 14th April 1911 and the 13th April 1917. The defendant resisted theclaim substantially on two grounds, namely, first that he was entitled toabatement, inasmuch as six bighas out of the thirty-two bighas of coal landincluded in the lease had been acquired under the and Acquisition Act; and,secondly, that as his possession of the mine had been interrupted by Mayer& Co., who were lessees of an adjoining mine under a grant made by thepredecessor of the plaintiffs on the 22nd April 1897, the entire rent wassuspended. The Subordinate Judge gave effect to the first contention andoverruled the second, with the result that, on the 30th April 1919, the claimwas decreed in part. The present appeal, preferred by the defendant againstthis decree, was heard on the 17th January 1921. In support of the appeal itwas urged that, in view of the provision of Section 108(c) of the Transfer ofProperty Act, the appellant was entitled to a reduction of the rent payable byhim, as a considerable portion of the mine let out to him had been flooded byreason of the act of Mayer & Co., who held the adjoining mine under theplaintiffs. The Court held that before the question of the true construction ofSection 108 could be usefully discussed, it was necessary to ascertain factswhich had not been investigated by the Court below. The Court accordinglydirected the lower Court, under Order XLI, Rule 25 of the Civil Procedure Code,to try the following issues on additional evidence and to return the evidenceto this Court together with the findings thereon and the reasons therefor:first, was there in fact an interruption of the possession of the defendantduring the years in suit within the meaning of Clause (c) of Section 108 of theTransfer of Property Act; secondly, if there was such an interruption, was itattributable to any act on the part of Mayer & Co., as alleged by thedefendant; thirdly, what were the terms of the grant made by the plaintiffs infavour of Mayer & Co. The Subordinate Judge has held a local enquiry,taken the additional evidence required and submitted his findings. We have nowto determine the appeal under Order XLI, Rule 26, Sub-rule (2).

3. The findings of the Subordinate Judge have been acceptedby both the parties before us and may be summarised as follows:

First, that during the period from the 14th June 1911 to the13th April 1917, there was interruption of the possession of the defendant inrespect of an area of ten bighas fifteen cottahs and twelve chhattaksapproximately in the top seam, while the balance, fifteen bighas four cottahsand eight chattaks, remained in fully workable condition and had during thisperiod a shaft pit by which the first defendant extracted coal;

4. Secondly, that this interruption of possession was due tothe unlawful act of Mayer & Co. in joining their mine to the defendantsmine by galleries encroaching upon the defendants coal land;

5. Thirdly, that the terms of the grant in favour of Mayer& Co. were set out in the lease granted by the predecessors of theplaintiffs on the 22nd April 1897 to Hari Charan Singh.

6. The Subordinate Judge has found that, if Mayer & Co.had not driven galleries by encroaching into the coal land of the defendant andhad not thus joined their mine to his mine, no water from their mine could haveentered his mine which was thereby flooded and submerged. The immediate causewas the destruction of the barrier by Mayer & Co.; the ulterior cause wasthe robbing of pillars in the mine of Mayer & Co., and also in a naturalchannel which carried the surplus rain water of the locality into aneighbouring river. This removal of pillars naturally caused subsidence intheir mine and also in the channel, thereby creating a passage for rush of alarge volume of rain water and flood water into the mine of the defendant.There can be no doubt that the act of Mayer & Co. was, as between them andtheir landlords, entirely unauthorised by the terms of their lease and must beregarded as unlawful. In these circumstances, we have to decide whether suchunauthorised act on the part of the lessees of the plaintiffs, absolves thedefendant from liability to pay rent in accordance with his lease. The solutionof this question depends upon the true construction of Section 108.

7. Clause (c) of Section 108 provides that, in the absenceof a contract or local usage to the contrary, the lessor of Immovable propertyshall be deemed to contract with the lessee that, if the latter pays the rentreserved by the lease and performs the contracts binding on the lessee, he mayhold the property during the time limited by the lease without interruption.This provision secures for the lessee the benefit of an unqualified covenantfor quiet enjoyment. A qualified covenant for quiet enjoyment protects thelessee against interruption by the lessor, his heirs and assigns, or any otherperson claiming by or under him, them, or any of them, whereas an unqualifiedcovenant, protects the lessee against interruption by the lessor, his heirs andassigns or by any other person or persons whomsoever. The covenant, in theunqualified form, covers the case of interruption by the superior landlord orother person claiming by title paramount, exercising a power of re-entry, orotherwise dispossessing the lessee. But even such a covenant does not include acase of disturbance by persons having no lawful title or right of entry; for,against them the lessee has his proper remedy and does not require a covenant,nor can he, on account Of being evicted by such persons, be relieved of hisliability to pay rent. Reference may be made in this connection to theexposition contained in the classical judgment of Sir John Vaughan, ChiefJustice of the Court of Common Pleas, in the case of Hayes v. Bickerstaff(1669) Vaughan. 118 : 124 E.R. 997 where he shows that the express covenant,like the implied covenant, protects the lessee only against lawful disturbanceof strangers, and then summarises the "inconveniences if the law should beotherwise.:"

I A mans covenant, without necessary words to make it such,is strained , to be unreasonable, and therefore improbable to be so intended;for, it is unreasonable 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 covenantermade to defend a man from that from which the law defends every man, that is,from wrong.

3. A man shall have double remedy for the same injury againstthe covenanter , and also against the wrong-doer.

4. A way is opend to damage a third person (that is, thecovenanter ) by undis-coverable 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 covenanter with an action.

8. This principle was recognised by Mr. Justice SubramaniyaIyer in Vithilinga Padayachi v. Vithilinga Mudali 15 M. 111 at p. 121 : 5 Ind.Dec. 426 when he observed that by a covenant for quiet enjoyment, the lessee isto enjoy his lease against the lawful entry, eviction or interruption of anyman, but not against tortious entries, evictions or interruptions, and thereason for the law is solid and clear, because against tortious acts, thelessee has his proper, remedy; against the wrong-doers. The decision of Mr.Justice Ranade in Tayawa v. Gurshidappa 25 B. 269 : 2 Bom. L.R. 1070 takessubstantially the same view, when it lays down that the words "withoutinterruption" in Section 108(c), give a lessee in India the same rightsas lie would have under what is known in England as a covenant for quietenjoyment in an unqualified form. The case then before the Court was, as inGopanund Jha v. Lalla Gobind Pershad 12 W.R. 109 decided by Sir Barnes Peacock,C.J., and Jackson, J., that of interruption caused by the paramount owner ofthe property, and although it is stated that "the lessee is protectedagainst interruption from any person whomsoever," it is made abundantlyclear by the observations which follow that the lessee must protect himselfagainst interruption by a person without lawful right or against wrongfuldisturbance by a stranger. The rule is thus now firmly settled that, like theexpress covenant, the implied covenant protects the lessee against alldisturbance by the lessor whether lawful or not, save under a right ofre-entry, but, as, against other persons, it protects the lessee only against,lawful disturbance: Wotton v. Hele (1670) 2 Wms. Saund. 177(b) : 85 E.R. 937;Anon. In re (1774) Lofft. 460 : 98 E.R. 747; Dudley v. Folliott (1790) 3 T.R.584 : 1 R.R. 772 : 100 E.R. 746; Nash v. Palmer (1816) 5 M. & S. 374 : 17R.R. 364 : 150 E.R. 1088; Granger v. Collins (1840) 6 M. & W. 458 : 55 R.R.687 : 9 L.J. Ex. 172 : 151 E.R. 492; Young v. Raincock (1849) 6 C.B. 310 : 18L.J.C.P. 193 : 13 Jur. 539 : 137 E.R. 124 : 78 R.R. 652; Jeffryes v. Evans(1865) 19 C.B. 246 : 147 R.R. 577 : 34 L.J.C.P. 261 : 13 L.T. 72 : 11 Jur. 584: 13 W.R. 864 : 144 E.R. 781; Sandreson v. Berwick-upon Tweed (1884) 13 Q.B.D.547 : 53 L.J.Q.B. 559 : 51 L.T. 495 : 33 W.R. 67 : 49 J.P. 781; Wallis v. Hands(1893) 2 Ch. 75 at p. 83 : 62 L.J. Ch. 586 : 3 R. 351 : 68 L.T. 428 : 41 W.R.471; Muktar Ahmad v. Sundar Koer 19 Ind. Cas. 815 [LQ/CalHC/1913/265] : : 17C.W.N. 960; Udai Kumar Dass v. Katyani Debi 69 Ind. Cas. 126 [LQ/CalHC/1922/113] : 35 C.L.J. 292 :A.I.R. 1922 C 87. It may be pointed out that, before the Transfer of PropertyAct, it had been maintained in a long series of decisions that if the lesseewere evicted by title paramount to that of the lessor or by a person to whom hehad given the land on lease, the lessee was discharged from the payment of rentand might claim abatement or suspension: Munee Dutt Singh v. William Campbell16 W.R. 278; Munee Dutt Singh v. William Campbell 12 W.R. 149; Gopanund Jha v.Lalla Gobind Pershad 12 W.R. 109; Kadumbinee Dossia v. Kasheenath Biswas 13W.R. 230; Kristo Soondur Sanyal v. Koomar thunder Nath Roy 15 W.R. 230. To thesame effect was the decision in Benjamin Douzelle v. Girdharee Singh 23 W.R.121 which held that in the absence of express agreement to the contrary, alandlord is bound by an implied obligation to indemnify the tenant againstdisturbance by his own act or by the acts of those who claim under him or byright paramount to him, but not against the wrongful acts of strangers. Thesame view is reflected in the judgment of Sir John Wallis, C.J. in SrinivasaAiyangar v. Rangasami Aiyangar 25 Ind. Cas. 812 [LQ/MadHC/1914/354] : 1 L.W. 858 where he statesthat a covenant for quiet enjoyment, as between lessor and lessee, even in itsmore extended form, is only a covenant against disturbance by somebody claimingunder a lawful title and does not extend to disturbance by a trespasser.

9. In view of what must thus be recognized as settled law,the appellant has been driven to contend as a last resort, that Mayer &Co., who hold under a lease granted by the plaintiffs, may rightly be treatedas included-within the category of persons claiming under them. This argumentis attractive but fallacious. Iyord Esher, M.R., when pressed with, theidentical argument, in Harrison v. Muncaster (1891) 2 Q.B. 680 : 61 L.J. Q.B.102 : 65 L.T. 481 : 40 W.R. 102 : 56 J.P. 69 on the authority of Fry, L.J., in,Sanderson v. Berwick-upon-Tweed (1884) 13 Q.B.D. 547 : 53 L.J.Q.B. 559 : 51L.T. 495 : 33 W.R. 67 : 49 J.P. 781. made an important observation which maybemuse-fully recalled here: "The expression in that judgment, claiming,under him, must be restricted in its meaning to claiming a right under him todo the particular act complained of." This interpretation led to theresult that where a lessee of a mine was interrupted, not by any act which thelessor had authorised, but by a flow of water which he had not authorised, thelessor was not liable under his, covenant for quiet enjoyment; see also Jonesv. Consolidated Anthracite Collieries (1916) 1 K.B. 123 : 85 L.J.K.B. 465 : 114L.T. 288. The same construction was placed upon the expression, claiming underhim, by Bray, J. in Williams v. Gabriel, (1906) 1 K.B. 155 : 75 L.J.K.B. 149 :94 L.T. 17 : 54 W.R. 379 : 22 T.L.R. 217 when he ruled that a person claimingunder the lessor means a person claiming under him the right to do the actcomplained of, so that if a lessor parts with the property or any adjoiningproperty to a third person, and that person is in a position torightfully-claim under his title from the lessor, that he is authorised to dothose acts, the lessor, will be responsible. If this interpretation were notadopted, the lessor would be responsible for all interruptions by anyperson-claiming, title through him, whether assignee, or under-tenant,howsoever willful or negligent the interruption. There must clearly, be somelimit, and we are of opinion that the limit indicated by Lord Esher isreasonable. It comes to this, that the lessor becomes bound for any act ofinterruption by himself or by any person whom he has expressly of; impliedlyauthorised to do the act. This, is good sense and fits m with what the partiesmight well have contemplated, because the lessor has really authorised the actsto be done; but to hold that the parties contemplated that the lessor was to beresponsible for wrongful or negligent acts which he had not authorised, wouldplainly be beyond reason. This principle explains the decision in Sanderson v.Berwick-upon-Tweed (1884) 13 Q.B.D. 547 : 53 L.J.Q.B. 559 : 51 L.T. 495 : 33W.R. 67 : 49 J.P. 781 where the Court of Appeal held a lessor responsible,because his tenant of adjoining land had, in the proper and contemplated use ofcertain drains, damaged the plaintiff (another tenant of his), but refused tohold the lessor responsible for excessive user of those drains. The testformulated by Lord Usher, it will be found, renders intelligible the decisions inLudwell v. Newman (1795) 6 T.R. 458 : 3 R.R. 231 : 101 E.R. 647; Evans v.Vaughan (1825) 4 B. & C. 261 : 28 R.R. 250 : 6 Dowl. & Ry. 349 : 3 L.J.(O.S.) K.B. 213 : 107 E.R. 1056; Calvert v. Sebright (1852) 15 Beav 156 : 92R.R. 361 : 51 E.R. 496; Carpenter v. Parker (1857) 3 C.B. 206 : 111 R.R. 622 :27 L.J.C.P. 78 : 6 W.R. 98 : 140 E.R. 718; Jeffryes v. Evans (1865) 19 C.B. 246: 147 R.R. 577 : 34 L.J.C.P. 261 : 13 L.T. 72 : 11 Jur. 584 : 13 W.R. 864 : 144E.R. 781; Rolph v. Crouch (1867) 3 Ex. 44 : 37 L.J. Ex. 8 : 17 L.T. 249 : 16W.R. 252 and White v. Jameson (1874) 18 Eq. 303 : 22 W.R. 761; where theinterference with the lessee was by a person whose title arose by a prior actor procurement of the lessor, see also Harmer v. Jumbil Tin Areas (1921) 1 Ch.200 : 90 L.J. Ch. 140 : 124 L.T. 418 : 65 S.J. 93 : 37 T.L.R. 91 The sameprinciple appears to have been recognised in Kali Prasanna Khasnabish v.Mathura Nath Sen 34 C. 191 where it was ruled that a lessee, who may have lostpossession of a portion of the lands covered by his lease, was not entitled tosuspend the payment of rent, if the dispossession had been effected, not by thelandlord, but by other persons who were subsequent lessees under him in respectof different lands and had no authority to interfere with the possession of theprior lessee. In the case before us, there was no express covenant for quietenjoyment in. the lease granted to the defendant, and his fights must bedetermined with reference to Section 108 alone. On the other hand, there was anexpress engagement by the defendant to pay the prescribed royalty, even if nocoal could be raised On account of difficulties in working. In thesecircumstances we hold that the remedy of the defendant, if any lay againstMayer & Co., "their wrongful interference could not be treated as aninterruption by persons claiming under the lessors, such as could besuccessfully set up in answer to the claim for rent made by the lessors in thepresent action. We hold further that there was no covenant for quiet enjoyment,either contractual or statutory, as against tortious interruption bywrong-doers.

10. The result is that the decree made by the SubordinateJudge on the 30th April 1919 is affirmed and this appeal dismissed with costs.There will be one hearing fee only and each party will bear his own costs ofthe further enquiry by the lower Court.

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Nowrang Singh vs. Janardan Kisorlal Singh Deo and Ors.(07.06.1922 - CALHC)