R.C. Mitter, J.
1. One Paru held a tenancy (occupancy holding) under the plaintiff's predecessor comprising an area of 50 bighas odd. The original rent of the tenancy was Rs. 11-4-5 gds. In 1295 the rent of the tenancy was enhanced to Rs. 18-2-18 gds. The consideration which moved Paru in agreeing to this enhancement was that the landlord allowed a small portion of arable land included in his tenancy to be converted by Paru into homestead land. Later on, rent was again enhanced by contract between the landlord and the tenant to Rs. 16-5-1/2gd. Thereafter that tenancy was slipt up. Eleven bighas of land were carved out of that tenancy and a separate tenancy was created in respect thereof at a rent of Rs. 3-15-5gds. This smaller tenancy comprising an area of 11 bighas was created in the name of Chaitan. Chaitan had another tenancy, also an occupancy holding, comprising an area of 8 bighas of which the annual rent was Rs. 2. The rent of this tenancy comprising an area of 11 bighas was later on enhanced to Rs. 13 and it was amalgamated with the other tenancy comprising the area of 8 bighas so that the consolidated rent came up to Rs. 15 per year. The land of the tenancy which comprised the area of 11 bighas has been recorded in Khatian No. 237 of mouza Alinagore. It consists of three plots Dags Nos. 23, 24 and 15 of that mouza. The land which constituted the tenancy of 8 bighas has been recorded in Khatian No. 226 of mouza Kayla-bad and is recorded in Dag No. 396 of the said mouza. The description of Dag No. 15 of mouza Alinagore is that ft is part of a hat (market). The plaintiff instituted this suit for rent in respect of the amalgamated jama. Her case in the plaint was that 91 acres of land of this amalgamated jama was surrendered by the tenant for which an abatement of rent of the amount of Rs. 2-2-15gds. was given with the result that after the said surrender the rent became Rs. 12-13-5gds. and the plaintiff has claimed in this suit rent at this rate from the year 1342 to the Asar kist of 1345. The material defences taken by the defendant are two in number. First of all he said that the two enhancements of rent of the parent jama of 50 bighas, namely, the enhancement to Rs. 13-2-18gds. and subsequently to Rs. 16-5-1/2gd. were illegal enhancements, inasmuch as those enhancements contravened the provisions of Section 29, Clause (b), Ben. Ten. Act. His next contention on this head comes to this : that Rs. 3-15-5gds. which was the rent of this carved out jama of 11 bighas was an illegal rent. His second plea is that he had been dispossessed by the landlord of that portion of the land included in the tenancy which has been recorded as a hat in the settlement record. On this he takes the plea of suspension of rent in para. 5 of the written statement where he sets out both his defences. He, however, admits that if there had not been dispossession on the part of the landlord he would have been liable to pay rent only at the rate of Rs. 5-15-5gds. being the total of Rs. 3-15-5 which was the original rent of the tenancy comprising the area of 11 bighas and Rs. 2 which was the rent of, the tenancy comprising the area of 8 bighas. The learned Munsif decreed the suit in full but on appeal the learned Subordinate Judge has dismissed it. He has held and has held rightly that the enhancement of rent of the parent jama comprising the area of 50bighas odd first from Rs. 11-4-5gds. to Rs. 13-2-18gds. and then from Rs. 13-2-18gds. to Rs. 16-5-1/2gd. were illegal enhancements. On that view of the matter, on the 11 bighas of land which had been carved out of the said 50 bighas odd of land and which had been formed into an independent tenancy, an illegal rent, namely, Rs. 3-15-5gds. had been imposed by the landlord.
2. On the last mentioned question as to whether the rent of Rs. 3-15-5gds. had been illegally imposed upon the said tenancy of 11 bighas I do not express any opinion, for that point is not material in the view that I am taking of this matter. In fact, in a part of the judgment, the learned Subordinate Judge has expressed the view that if the tenant had not established dispossession he would have granted the plaintiff a decree at the rate of Rs. 5-15-5gds. I think this appeal ought to be disposed of on the basis of the second defence which the tenant took. The tenant had indicated in his written statement the manner of dispossession, that is to say, that the landlord had dispossessed him by turning him out of that piece of land on which he later on established a hat. The specific plot is indicated in the settlement record; it is Dag No. 15 of mouza Alinagore. The learned Subordinate Judge was therefore not right in saying that the piece of land from which the plaintiff had dispossessed her tenant cannot be identified. His finding is that there was forcible dispossession of the tenant by the plaintiff landlord from a portion of the land of the amalgamated tenancy that is to say, the tenancy of 19 bighas which was created as a result of the amalgamation of the two tenancies comprising respectively 11 bighas and 8 bighas. That finding is a finding of fact and is binding on me. But the further finding of the learned Subordinate Judge that there are no materials to indicate from which plot the tenant has been dispossessed is not correct. As I have pointed out, the settlement record on which the defendant himself relies indicates the plot, that is to say, Plot No. 15 of mouza Alinagore. That plot was in the tenancy comprising an area of 11 bighas for which there was separate assessment of rent. It was not within the tenancy of 8 bighas for which the rent had been assessed at Rs. 2. At the time of the amalgamation there was no enhancement of the rent of that tenancy.
3. Under these circumstances the question is whether the whole rent is to remain suspended or only the rent which had been assessed in respect of the 11 bighas which formed a separate tenancy before amalgamation till possession is restored by the landlord. In my view there cannot be total suspension and plaintiff's suit cannot be dismissed in toto. Inasmuch as she has dispossessed the tenant from a portion of the 11 bighas which was the subject-matter of a separate tenancy of 11 bighas before amalgamation and on which rent was assessed separately she cannot get the rent which had been assessed on the said 11 bighas of land. Whether: that assessment was legal or illegal does not accordingly arise. But she is entitled to the rent of Rs. 2 which was separately assessed for the land of mouza Kaylabad and which formed the subject-matter of a separate tenancy at a rent of Rs. 2. The fact that there was an amalgamation of the two tenancies later on would not in my opinion make any difference. No doubt after the amalgamation there was one tenancy in the eye of law comprising an area of 19 bighas distributed over both the mouzas Alinagore and Kaylabad, but for the purpose of considering the question of abatement of or suspension of rent that fact does not matter. The view I take is supported in principle by the decision in Dwarka Nath Mondal v. Sri Gobinda Choudhuri : AIR1929Cal130 . There one tenancy was created in respect of many parcels of land described in different schedules of the potta but in assessing the total rent the different schedules were assessed separately that is to say, there was an indication in the potta as to how the total rent was arrived at. The landlord dispossessed the tenant from the lands of one of the schedules only. It was contended by the tenant that the entire rent as mentioned in the potta was suspended. But this Court held that the tenant was entitled to get abatement only of so much of the rent which had been assessed in respect of the lands of that schedule from a part of which the tenant had been dispossessed. Relying upon the principle formulated in that case I hold that the plaintiff is only entitled to get rent at the rate of Rs. 2 per year till she restores possession to the, tenant of Dag No. 15, of mouza Alinagore. She would also get proportionate cess but I do not allow damages.
4. The result is that this appeal is allowed in part. The plaintiff will get a decree for rent with proportionate cess for the period in suit. The parties will bear their respective costs in this Court but the plaintiff will be entitled to proportionate costs in the Court of first instance and of the Court of appeal below.