1. This appeal arises out of a suit for the recovery of arrears of rent for the year 1290 and for a portion of the year 1291, that is, up to the Pous kist of 1291; and also for ejectment.
2. The Munsif awarded a decree in favour of the plaintiff for the arrears of rent proved to be due from the defendant for the period in suit, and also for ejectment, under the provisions of Section 52. On appeal it was contended that the plaintiff, having sued for the rent of a portion of the year 1291, was not entitled to a decree for ejectment. But the District Judge was of opinion that this argument was untenable. He says: 'It seems inequitable that the defendant should be thus protected, merely because the suit for arrears due on account of both years has been brought,' * * * * And then, further on, the Judge says : 'The Munsifs order will be so far modified that it will be specified in the decree what the amount of arrears decreed for 1290 are, plus the proportionate costs on those arrears, apart from damages decreed, and if the defendant pays in that amount within fifteen days from the date of the decree, execution will be stayed.' The same objection has been urged before us here. We are of opinion that the appellant's contention is valid. It is also supported by a decision in the case of Peer Bux v. Mowzah Ally 1 Hay 89. The facts of that case are, that a suit for ejectment was brought by a landlord against his tenant, alleging that the tenant was liable to be ejected in consequence of his having defaulted to pay the rent of the whole of the year 1267 at the end of that year. It was proved that the plaintiff bad distrained for the recovery of arrears of 1268, and recovered a portion of the rent for that year. Upon these facts, it was held that the landlord, having received rent for the year 1268. from the tenant, it was a recognition of the tenancy for that year; and therefore the landlord was not entitled to eject the tenant on account of arrears due on account of the year 1267. Applying that principle to this ease, we think that the plaintiff is not entitled to claim ejectment at all. He has sued for arrears of rent for a portion of the year 1291, and by that he has admitted that the defendant continued in possession during that portion of the year as tenant; and having admitted that, according to the principle laid down in the case referred to above, the plaintiff cannot treat the defendant as a trespasser, and obtain a decree for ejectment under Section 22 of the Rent Law.
3. It was contended before us that the contention of the appellant is opposed to the provisions of Section 52, because under that section a landlord has a right to bring a suit for ejectment and for arrears in the same action. But we are of opinion that that is not the proper construction of Section 52. Section 52 only lays down the procedure by which the right, which the landlord has under Section 22 of extinguishing the tenancy, is enforceable, and the claim for rent mentioned therein is the rent on account of which the tenant is liable to be ejected. The Rent Act (Bengal Act VIII of 1869) may be divided into two portions--the first twenty-three sections deal with the substantive law defining the rights of landlords and tenants, and the rest of the Act lays down the procedure by which those rights are to be protected and enforced. Section 22 runs as follows: 'When an arrear of rent remains due from any ryot at the end of the Bengali year, or at the end of the month of Jeyt of the Fusli or Willayuttee year as the case may be, such ryot shall be liable to be ejected from the land in respect of which the arrear is due, provided that no ryot having a right of occupancy, or holding under a pottah the term of which has not expired, shall be ejected otherwise than in execution of a decree-or order under the provisions of this Act.' The right that is given to the landlord is this, namely, that if any arrears are due at the end of the year, the tenant is liable to be ejected for non-payment of rent for that year,--that is, the landlord has a right to put an end to the tenancy. And the mode of enforcing those rights in the class of cases mentioned in the proviso is given in Section 52 of the Act. But forfeiture or determination of tenancy takes place when the tenant defaults to pay the rents due at the end of the year. If the landlord still treats the defaulter as his tenant, the right he has acquired under Section 22 must be taken to have been waived. The act of the landlord suing for the rent of the succeeding year would have the effect of an admission that the defendant's possession in that year is that of a tenant. Take the case of a tenant not having a right of occupancy. under Section 22 he is liable to be ejected from his holding without having recourse to any proceeding in a Court of Justice. But if the landlord brings a suit for arrears of rent for the succeeding year against the tenant, before ejecting him, he cannot afterwards eject him in the middle of the year, because by bringing a suit against him for rent for the next year the landlord admits his tenancy.
5. We, therefore, dismiss the claim of the plaintiff for ejectment. The decree of the lower appellate Court will be modified accordingly. The appellant 13 entitled to the costs of this Court and of the lower appellate Court.