1. This was a suit brought by the landlord to recover Rs. 174-4-0 an arrears of rent with interest at twelve per cent. The defendants are permanent tenants of the plaintiff liable to pay Rs. 42-8-0 per year as rent. The land leased to the defendants was six acres in extent. In the year 1919 Government acquired three acres and nineteen gunthas for railway purposes and a compensation of Rs. 667-0-8 was paid to the tenants. The tenants remained in possession of the remaining land, two acres and twenty-one gunthas, instead of the whole area of six acres in extent. In this suit the tenants claimed an abatement of rent. The learned Subordinate Judge allowed the abatement as claimed by the defendants. On appeal, the learned District Judge disallowed the abatement.
2. It is urged on behalf of the appellants, the tenants, that a large portion of the land having been acquired by Government, the tenants have ceased to be in possession of the whole land, and therefore, they are entitled to an abatement of rent.
3. In Uma Sunkur Sirlcar v. Tarini Chunder Singh ILR (1882) Cal. 571, where in a suit by a zemindar against a patnidar the latter claimed abatement of rent on the ground that part of the land included in the patni tenure had been acquired by Government for public purposes and where there was an agreement between the zemindar and the patnidar that they should divide and take in equal shares the compensation money, it was held that the patnidar was entitled to abatement of the rent. Similarly, an jardar was held entitled to deduction of rent on his showing that there were tenants of his on the land who, before the land was taken by Government, paid rent to him which they had after the acquisition ceased to pay. See Watson & Co. v. Nistarini Gupta ILR (1884) Cal. 544. In Peari Mohun Mukerjee v. Avdhiraj Aftab Chanel (1882) 10 C.L.R. 526, where the Patnidar took the whole of the compensation money and the zemindar declared his intention to grant no abatement of rent, it was held that the patnidar was not entitled to the abatement sought for. In apportioning compensation money between a landlord and a tenant, the principle to be followed is to ascertain the amount of rent and capitalize it at so many years purchase and to appraise the value of the right of enhancement of rent if any, and pay the two sums to the landlord, and the balance to the tenant. See Shama Tro-sunno Bose Mozumdar v. Brakoda Sundari Dasi ILR (1900) Cal. 146 and Dinendra Narain Roy v. Tituram Mukerjee ILR (1903) Cal. 801. It would, therefore, appear from the decided cases as well as from the rule of justice, equity and good conscience that where a land has been taken by Government and compensation has been paid to a party who has received more than his own share of the compensation, he must account to the other party, that is, if the landlord receives the whole amount and the tenant has not got any portion of the compensation, the landlord is bound to abate the rent. On the other hand, if the tenant receives the whole of the compensation without paying the share due to the landlord, he is not entitled to retain the whole compensation and refuse to pay the whole of the rent.
4. The question, therefore, in this case is whether the compensation awarded to the tenant included the landlord's interest, and whether the landlord has received any compensation for the land acquired. If the landlord has not received any compensation for the land acquired and the whole of the compensation awarded for the land is retained by the tenant, the tenant is not entitled to an abatement of the rent. I think, therefore, that the material questions arising in this case have not been determined by the lower Courts.
5. I would, therefore, send down the following issues :-
(1) Whether the compensation awarded to the tenants included the land-lord's interest ; and
(2) Whether the landlord has received either from the Collector or from the tenants any portion of the compensation for the land acquired ?
6. Findings to be returned within two months. Fresh evidence to be led by both parties.