Skip to content


Hajira Bibi Vs. Abrar Hussain - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1281 of 1963
Judge
Reported inAIR1964All343
ActsTransfer of Property Act, 1882 - Sections 108(1)
AppellantHajira Bibi
RespondentAbrar Hussain
Advocates:M.H. Beg, Adv.
DispositionAppeal dismissed
Excerpt:
property - dispossession from a part of house - section 108(1) of transfer of property act, 1882 - tenant leased out house on rent payable on whole house - tenant dispossessed from part of house - landlord cannot claim rent for part of house or whole until tenant remains dispossessed of portion of house. - - it was a case not of dispossession, tut of failure to deliver possession at the commencement of the lease and the question arose after 50 years of such commancement, and their lordships consequently held that 'any legal theory which permits such claim to be raised after 50 years as a claim to pay no rent at all stands condemned......of that portion. but where one rent is fixed for the accommodation as a whole., there is no rent payable for different parts of the accommodation. only onerent is payable for the entire accommodation; and if the tenant has been dispossessed from a portion of that accommodation, the landlord cannot even contend that proportionate rent was payable for the portion which still remains in the possession of the tenant.utility of an accommodation is not always in proportion to the plinth area. there may be two equal rooms in a house and a tenant may be able to pay a certain rent for both of them. but it cannot be said that either of them would in every case be worth half the amount of rent. in some cases that may be so, but in most of the cases one room would be worth very much less. in.....
Judgment:

S.D. Singh, J.

1. This is a plaintff's appeal arising outof a suit for the recovery of arrears of rent and ejectment. The suit was dismissed by the Munsif for ejectment and that part of the decree has become final. The Munsif decreed the suit for the recovery of arrears of rent, but that decree was reversed by the first appellateCourt on the ground that the plaintiff having illegally dispossessed the defendant from a part of the house which was let out to him, he was no longer entitled to any rent. The plaintiff has, therefore, filed this second, appeal inrespect of that relief.

2. The house in question was let out to the defendant at Rs. 13/- p.m. The, rent was, obviously, therefore, for the whole of the accommodation. If the plaintiff dispossessed the defendant from a part of the same, he ceased to be entitled to realise rent from him either for the whole of the accommodation or for that part ofit which continues to remain in his (defendant's) possession. The position would, of course, be different wheretwo portions of the same accommodation are let out toa tenant separately on separate rents, and he is dispossessed from one of those portions. In such a case the landlord would still be entitled to claim rent from the tenant for the portion of the accommodation which continues to be in his possession as, according to the agreement between the parties, rent was settled separately in respect of that portion. But where one rent is fixed for the accommodation as a whole., there is no rent payable for different parts of the accommodation. Only onerent is payable for the entire accommodation; and if the tenant has been dispossessed from a portion of that accommodation, the landlord cannot even contend that proportionate rent was payable for the portion which still remains in the possession of the tenant.

Utility of an accommodation is not always in proportion to the plinth area. There may be two equal rooms in a house and a tenant may be able to pay a certain rent for both of them. But it cannot be said that either of them would in every case be worth half the amount of rent. In some cases that may be so, but in most of the cases one room would be worth very much less. In such cases, therefore, the rent cannot but cease to be payable for the accommodation as a whole. Since the agreement does not provide for the payment of any rent for a portion of that accommodation, the result would be that the landlord would not be entitled to claim any rent from the tenant for the period during which the tenant remains illegally deprived of any portion of the property leased out to him. This is the principle described as the doctrine of suspension of rent. I am supported in this view by the decision of the Assam High Court in Jatindra Kumar Seal v. Raimohan Rai AIR 1961 Assam 52 and that of the Calcutta High Court in Nilkantha Pati v. Kshitish Chandra : AIR1951Cal338 .

3. There is also a decision of their Lordships of the Privy Council, which though not exactly on all fours, does lend support to this view. In Katyayani Devi v. Udoy Kumar Das their Lordships observed at p. 99 :--

'The doctrine of suspension of payment of rent, where the tenant has not been put in possession of part of the subject leased, has been applied where the rent was a lump rent for the whole land leased treated as an indivisible subject. It has no application to a case where the stipulated rent is so much per acre or bigha.'

4. What their Lordships of the Privy Council pointed out was that where the rent of the land has been settled per acre or per bigha, then in that case even if a tenant is dispossessed from a part of the land leased out to him, he may still continue to be liable to pay rent at that rate for that portion of the land which still continues to be in his possession, but if the rent is settled not at so much per acre or per bigha, but as a lump sum for the entire land, then the rent payable by the tenant cannot be apportioned in proportion to the area which still continues to be in the possession of the tenant. When he is dispossessed from a portion of the leased property by the landlord, the payment of the entire rent stands suspended.

The question again came up to be considered by their Lordships in Ramlal Dutt v. Dhirendra Math , but the facts in that case were, materially different. It was a case not of dispossession, tut of failure to deliver possession at the commencement of the lease and the question arose after 50 years of such commancement, and their Lordships consequently held that 'any legal theory which permits such claim to be raised after 50 years as a claim to pay no rent at all stands condemned.' In respect of the application of this doctrine to other cases, their Lordships did not express any opinion observing :

'Whether it should be applied at all to cases of eviction of the lessee by the lessor from a part of the land, and if so, whether it is limited to rent reserved as a lump sum, and whether it is a rigid or discretionary rule--these questions will call for careful review when they are presented by the facts of a particular case.'

5. The plaintiff having dispossessed the defendant from a portion of the house which was let out to him and rent being payable for the house as a whole, he is rot entitled to claim any rent so long as the defendant remains dispossessed of the portion of the leased property. In that view the suit was rightly dismissed even for the arrears of rent claimed by the plaintiff.

6. The appeal is, therefore, dismissed under OrderXLI, Rule 11, C. P. Code.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //