1. This is an appeal, under Clause 15 of the Letters Patent, against a judgment of Mr. Justice Newbould in a suit for arrears of rent. The plaintiff sued to recover rent from the defendant for the last three quarters of 1315, 1316 and the first three quarters of 1317. He subsequently withdrew his claim in respect of the first three-quarters of 1317 with liberty to bring a fresh suit on the same cause of action. The District Judge overruled the contention of the defendant that the rent had been suspended by reason of eviction and decreed the claim for the last three quarters of 1315 and the whole of 1316. This judgment of the District Judge has been affirmed by Mr. Justice Newbould, The facts found may be briefly narrated. The defendant was a tenant under the plaintiff in respect of 57 bighas of land. The plaintiff dispossessed the defendant from 271 bighas. In 1904 the defendant instituted a suit for recovery of possession on declaration that the disputed lands were included in his tenancy. In that suit an issue was raised, whether the lands were part and parcel of the tenancy of the present defendant or whether it was included in another holding alleged to have been purchased by the landlord at an execution sale. The Subordinate Judge found in favour of the tenant and gave him a decree for recovery of possession; on appeal to this Court, that decree was affirmed. The tenant executed the obtained possession of the 27 bighas on the 13th October 1909. In these circumstances there is, prima facie, no room for doubt that the rent remained suspended during the entire period of eviction, which includes the period for which rent is now claimed.
2. The landlord, however, contends that inasmuch as in a proceeding under Chapter X of the Bengal Tenancy Act, the Settlement Officer had assessed fair rent on the land in the occupation of the tenant after he had been evicted from 27 bighas, there was a severance of the tenancy; in other words, the tenant now held two tenancies, one of 30 bighas and the other of 27 bighas. But the proceedings before the Settlement Officer could not have this effect, as no question of sub-division of the tenancy did or could arise before him; on the other hand, the effect of the decision of the High Court in 1909 obviously is that there is still a tenancy of 57 bighas and the defendant, on execution of that decree, is now in occupation of all the lands comprised therein. There is thus no escape from the position, that the tenant remained evicted during the years in suit from a substantial portion of the land of his tenancy and the inference is irresistible that the entire rent has been suspended. Reliance, however, has been placed on behalf of the landlord on Dhunput Singh v. Mahomed Kazim Ispahani 24 C. 298 : 12 Ind. Dec. (N. S.) 864. That case has obviously no application to the circumstances of the present litigation. It affirms the proposition now well settled Chandra Kanta Dass V. Ramanath Barman 6 Ind. Cas. 478 : 11 C. L. J. 591; Rai Charan Sar Mazumdar v. Administrator-General of Bengal 2 Ind. Cas. 169 : 36 C. 856 : 9 C. L. J. 578 : 13 C. W. N. 853; Saroda Prosad Bhattacharjee v. Manmotho Nath Mitter; Rasseswari Chowdhurani v. Surendra Mohun Tagore 5 Ind. Cas. 105 : 11 C. L. J. 601 that if there is interference by the landlord with the possession of the tenant even in respect of a portion of the property there should be no apportionment of rent; but it also lays down that if the interference is in respect of only a certain portion of the demised property the rent of which is separately assessed, there should be apportionment. The present case is clearly not of this description. The decision in Dhunput Singh v. Mahomed Kazim Ispahani 24 C. 298 : 12 Ind. Dec. (N. S.) 804 contemplates cases where there are in essence two tenancies included in one lease and the tenant is dispossessed from the lands of one of these only. We may, in this connection, refer to the observations on this decision in the case of Saripjan Bibi v. Aftabuddin 8 Ind. Cas. 30 C.L.J. 115 and Mohammad Zeaullah Miah v. Sukliannessa Bibi 5 Ind. Cas. 352 : 11 C. L. J. 606 : 14 C. W. N. 446. We may add finally that we are entirely in accord with the opinion expressed by Sir Lawrence Jenkins, C. J., in the case of Godai Molla v. Aminuddi Howladar 21 Ind. Cas. 957 : C. L. J. 509 that the Court should be reluctant to relax the Rule that eviction of tenant by the landlord leads to suspension of the entire rent.
3. The result is that this appeal is allowed, the decree of the Court below set aside and the suit dismissed with costs in all the Courts. Our judgment will in no way affect the order of the District Judge whereby the plaintiff was allowed to withdraw his claim in respect of 1317 with liberty to institute a fresh suit in respect of the same cause of action---indeed, that portion of the order of the District Judge was not assailed before us.