1. In this case the appeal is brought from a decision of the District Judge, 24 Parganas, whereby he decreed a suit for rent. The arguments that have been very ably urged before us for the appellant arise out of the following facts : It appears that at the beginning, the defendant was a lessee of an ordinary non-permanent jote of some 302 bighas at a rental per bigha of Rs. 1-12-0 per annum. In March 1911 the lessee transferred some 55 bighas to a lady of the name of Bhagabati Dasi. That was a transfer; was not a sub-lease, but a complete transfer, as regards 55 bighas, of the defendant's right and interest. It was a transfer which the landlord, the present plaintiff, was not obliged to recognize. It appears, however, that in point of fact the landlord did recognize her and did accept rent from the transferee. On 25th February 1914 the landlord granted a permanent settlement to the defendant and, upon the document containing that permanent settlement, the present questions really arise. The document begins by saying:
Whereas the lessee is in possession under garkaimi or temporary and nontransferable right of a holding of 302...and whereas the said lessee has proposed to take a permanent maurasi mokarari settlement of the same at a rental of Rs. 2-4-0 per bigha, and whereas the landlord has accepted the lessee's proposal this pattah is granted to the lessee on the terms and conditions mentioned below.
2. It says the selami is Rs. 1. It says the boundaries of the aforesaid land are given in the schedule below. It says the annual rate of rent, and then it goes on by Clause 7 to say that the company shall have full power to survey or measure the land held by the said lessee by virtue of this lease from time to time and the company shall have full liberty to increase or decrease the rent according as the land is found to be more or less than the area mentioned in this pattah at the abovementioned rate of Rs. 2-4-0 par bigha.
3. Now, it appears that some three years after the rent of this lease Bhagabati applied for mutation of name in the landlord's sherista and her application was granted. In this suit the defendant was sued for rent from 1322 to 1324 under the pattah of 25th Feb. 1914. The area for which he is sued is limited to the area in his own actual occupation and enjoyment.
4. In these circumstances he takes two defences before us. First of all that when the pattah of 1914 was given, that comprised the 55 bighas which he had previously transferred to Bhagabati. He says that, as regards this 55 bighas, he has become by his new pattah an intermediate tenure-holder and Bhagabati is obliged to attorn to him. In these circumstances he says that he has a holding of the whole 302 bighas, and that if his landlord sues him for rent for only a part of that holding then that rent suit is not a properly constituted rent suit. In the second place he says that he has never got possession under the new pattah of the 55 bighas transferred to Bhagabati and that the landlord, by granting her prayer for mutation of name, has so interfered with his enjoyment as to amount to an eviction entailing the consequence of an entire suspension of rent.
5. It will be observed that in this suit the defendant by these defences is really endeavouring to litigate the question which may be of some importance and difficulty and which affects his landlord on one hand and Bhagabati on the other hand the question, namely, whether under the pattah of 1914 it was ever intended that he should be given mourasi mokarrari right in the land which he had previous thereto transferred to somebody else. However, if we are obliged to determine that question in view of the present defence we should have to do so. But, in my opinion, we are not obliged to determine that question; and, apart from determining that question, these two defences should be disallowed.
6. It is perfectly plain, to take the eviction point first, that this lease was intended on the footing that the lessors were granting to the lessee the land of which he was in possession. He takes that lease on that footing. He wants to turn round now and says:
I did not have possession, you have never given me possession under the lease, of 55 bighas and, therefore, I am not obliged to pay you any rent at all.
7. On the face of this document, in my opinion, the contention as regards eviction is unsound. If it be the case then, on the execution of that document Bhagabati became obliged in law to attorn to the lessee and to pay her rent to him, and, if she did not do so, the lessee has ample remedy against Bhagabati. But why, because she took one view of her rights in that respect, the landlord should be obliged to suffer an entire suspension of rent for having granted to his leseee a lease intended to give him only a higher right in what he possessed already, I fail altogether to see. I think the decisions with regard to suspension of rent upon eviction are entirely inapplicable, in the circumstances, to this case.
8. The next question is whether the defendant is entitled to take the technical defence that this suit, as it is not brought for the whole 302 bighas, is in form bad and should be dismissed. A case Raheemuddy Akan v. Poorno Ghander Roy Chowdhury has been cited from 22 W.R. 336. That is an old case, and I have no doubt at all that it was rightly decided. It was a case where there being some four holdings the landlords had purported to cut up the four holdings so as to make five holdings altogether, interfering with the area held by each individual tenant; and when they brought five rent suits on that footing the whole five suits were dismissed with costs. That seems to me to be very sound and reasonable. But the present case is not a case to which that can, in my opinion, apply. Because, apart from the fact that the land is described inter alia by a reference to the defendants possession, Clause 7 says that at any rate for some consideration, the parties agreed that the company should be at liberty to find out the exact area of which the lessee was to be in occupation and should be entitled to charge him for rent calculated upon that area, be it less or more than the area mentioned in the pattah. I think that Clause 7 is sufficient answer to this technical objection and for that reason this appeal fails.
9. I would repeat that in my opinion we are unable to arrive at this result without finally deciding here and now what the exact state of right is as between the plaintiff company on the one hand, Bhagabati on the other and this lessee on the third part.
10. In my opinion, in any view, the present suit is entitled to succeed and this appeal is dismissed with costs to the plaintiff respondent.
11. I agree.