1. In connexion with proceedings for the determination of mesne profits a receiver was appointed to auction the land and the respondent in this case has executed a document in respect of the second crop, due for harvest in February 1923. The document is Ex. J and is styled a security bond. Under it the respondent undertook to raise the dalva (second) crop of 1923 and to deliver 70 bags of dalva paddy. If he failed so to deliver them, he bound himself personally for the loss which might be awarded by the Court. In pursuance of this arrangement an application was made to the Court to enforce the terms of the document and the District Munsif passed a decree for the full 70 bags at the rate of Rs. 6-4-0 per bag. In appeal by the respondent the learned Subordinate Judge found on the merits that he was prevented from raising the crop according to his undertaking and reduced the amount payable to 20 bags. This is a second appeal preferred by one of the plaintiffs in the original action, claiming the full amount according to Ex. J.
2. Mr. Lakshmanna wants to take the preliminary point that an application of this nature would not lie and that the proper course would be to enforce Ex. J in a separate suit. The learned Subordinate Judge has discussed this question, though not very lucidly, and, as his decision shows, must be taken to have accepted the maintainability of the application. Here I do not think that I can entertain an objection of this character because Order 41, Rule 22, Civil P.C. while it allows a respondent to support the decree on any of the grounds decided against him, will not permit him to take cross-objections to it unless he has filed a memorandum of objections. The effect of this objection would be not to support the decree, but to cut the ground from under it, and accordingly as there is no memorandum of objections I must hold that it is inadmissible.
3. Coming now to the merits, the respondent made objection to the claim on two separate grounds. The first was that he was prevented from taking possession of the land by one Venkataratnam. As to this the learned Subordinate Judge finds the allegation unproved. Mr. Lakshmanna would put his objection on a wider ground, namely, that it is not shown that the lessor has put the lessee into possession of the property. But this again would be an objection of a character which could only be made by a memorandum of objections because if it were to succeed the award of the lower Court must be set aside altogether.
4. The other objection is based on the ground that the respondent was prevented from cultivating the land with paddy. The circumstances have been given in para. 11 of the Subordinate Judge's judgment. It is no doubt true that the neighbouring land owners exercised pressure upon him not to cultivate the dalva crop, but I must agree with the lower Court that they had no legal grounds for doing so and that, since sufficient water was available, the respondent was not prevented by any physical causes from raising the crop. If he had gone ahead in spite of the obstruction offered and had been resisted, I infer that that resistance would have been an illegal act. The law upon this subject is quite clear. I think that, whether or not Ex. J is technically a lease, it had for the present purpose the same practical effect as a lease and was subject to the same legal incidents. I have not been shown that the respondent's liabilities under it would be in any respect different from those of a lessee and I must take it that they would be subject to the same qualifications. Although the Transfer of Property Act may not apply, the principles of Section 108, which defines the rights and liabilities of a lessor and a lessee, will apply, Clause (c) embodying a covenant for quiet enjoyment, Clause (b) binding the lessee as regards the payment of rent and Clause (e) defining the only circumstances in which the lease shall be deemed to be void. So far as the covenant for quiet enjoyment forms part of the contract, the law is that the lessor does not covenant against the wrongful acts of strangers:
for the law itself does defend every man against wrong and therefore though one warrants land to another expressly or covenants for quiet enjoyment generally yet he does not defend against tortious entries: Woodfall, Edn. 22, p. 876.
5. This principle has received extended consideration by Mookerjee, J., in Udaykumar Das v. Katyani Debi AIR 1922 Cal 87. Other authorities for the same proposition are Vithilinga Padayachi v. Vithilinga Mudali (1892) 15 Mad 111 and Srinivasa Aiyangar v. Rangasami Aiyangar AIR 1915 Mad 717. The covenant for quiet enjoyment, they lay down, is only a covenant against disturbance by somebody claiming under a lawful title. It does not extend to disturbance by a trespasser. On the finding therefore that the respondent was not prevented from cultivating by any lawful act on the part of a third party, he cannot plead that he is excused payment of any portion of the amount contracted for. Nor is it open to the Court to exercise its discretion in reducing that amount. The learned Subordinate Judge has not defined the legal principles upon which he conceives himself competent to make such a reduction, but from expressions which he uses he would appear to be under the impression that he was assessing mesne profits, because one test which he applies is whether the appellant exercised ordinary diligence. I do not think that this is the correct view to take of the law and the facts, and I must uphold the decision of the District Munsif that the appellant is entitled to an award of the full sum. The appeal is accordingly allowed and the decree of the lower appellate Court set aside and that of the District Munsif restored with costs here and in the lower appellate Court.