Jyotirmoyee Nag, J.
1. This Rule is directed against Order No. 54 dated 8-10-80, passed by the learned Munsif, Second Court, Diamond Harbour in Title Suit No. 540 of 1976.
2. The petitioner is a tenant under the opposite party in respect of certain structures, constructed by the landlord opposite party on Plots Nos. 375 and 382. These plots of land are by the side of Diamond Harbour Road, the rent of the premises being Rs. 80/- per month, the area of the tenanted structures being 30 ft. X 20 ft. The Plot No. 375 is the khas land of the Irrigation Department of the Government of West Bengal and it is a way side land. A portion of the said premises standing on Plot No. 375 and measuring 8 ft. X 20 ft. was demolished by the Government of West Bengal for keeping the space open by the road side and as a result of demolition the size of the tenanted structures as let out initially to the petitioner has been considerably reduced and the truncated structure is now standing on the floor area of 20 ft. X 20 ft. The opposite party landlord filed a suit being Title Suit No, 540 of 1976 in the Second Court of Munsif at Diamond Harbour for eviction of the petitioner on the ground of default in payment of rent and also on the ground of reasonable requirement. This suit was filed on 21-9-76. Summons of the suit was served on 19-11-76 and thereafter the petitioner filed an application under Sections 17 (1) and 17 (2) on 19-11-76, In the application under Section 17(2) the petitioner prayed for abatement of rate of rent on account of reduction in the size of the tenanted portion of the premises. The learned Munsif was pleased to reject the petitioner's application under Section 17 (2) inter alia, and found that
(a) The defendant did not break down the suit premises or any part of it. The State Government has done the work of demolition;
(b) There is no dispute regarding relationship of landlord and tenant between the parties with regard to the title of the plaintiff in respect of the suit premises;
(c) That the work of demolition was done by the Public Works Department with the help of Police Personnel and others and it was done with a view to removing structures on the lands which fell within 20 ft. on either side of the road;
(d) As Government accepted rent from the plaintiff, Government cannot be treated as title paramount at the time of demolition of the suit structures;
(e) That it is not disputed that the implied covenant under Section 108(c) of the Transfer of Property Act protects against lawful acts but not tortious interruptions and in case of protection of the lessee from title paramount, this covenant is unqualified;
(f) That the defendant is not entitled to any proportionate abatement of rent; that the Government cannot be held to be title paramount in the instant case, therefore the defendant should pay all arrears of rent at the admitted rate of Rs. 80/- per month;
(g) As the deposit made by the tenant defendant cover the entire amount of arrears with statutory interests thereon, it is not necessary to direct the defendant to make any further deposits.
3. Against the impugned order of the learned Munsif the petitioner has come up in revision.
4. It is submitted on behalf of the petitioner that the court below acted illegally in holding that the petitioner is not entitled to get any proportionate abatement of rent in the instant case and that the petitioner is liable to pay all arrears of rent at the admitted rate of Rs. 80/- per month. He further argued that the court below allegedly held that the State Government could not be considered to be title paramount in the instant case on the erroneous view that the State Government had acted wrongfully in demolishing a part of the tenanted structures. That, further the petitioner is not entitled to protection under Section 108(c) of the Transfer of Property Act although it was not held that the demolition of the structures in the suit premises was tortious action. The learned Munsif erred in holding that the petitioner is not entitled to proportionate abatement of rent on the basis of the finding that the State Government is not title paramount and the demolition by the State Government was not done validly.
5. The main question that needs to be decided in this case is whether the State Government is title paramount in the facts and circumstances of this case and whether the Acts of demolition committed by the State Government were done in pursuance of its right as title paramount. Who is 'title paramount' has been sought to be substantiated by reference to the definition of 'title paramount' in various authorities cited by Mr. Biswas appearing for the petitioner. The ordinary dictionary meaning of 'title paramount' is 'Supreme title'. In Osborn's Concise Law Dictionary the definition of 'paramount' is superior. In Mozley & Whiteley's Law Dictionary 'paramount' means 'the Supreme Lord of a fee'. Thus, the Queen is Lord paramount of all the lands in the Kingdom. Mr. Biswas has referred to a passage from General Law of Landlord and Tenant by Toa at page 157, where it is stated that eviction by 'title paramount' means an eviction due to the fact that the lessor had no title to grant. The term, 'paramount title' is the title paramount to the lessor which destroys the effect of the grant and with it the corresponding liability for payment of rent; so that mere eviction from, or a deprivation of the use and enjoyment of, the demised premises, or part of the same whether such eviction be lawful or unlawful, is insufficient, where the lessor's title is not affected or called in question.
6. To constitute a good defence in such a case three conditions must be fulfilled. The eviction must have been from something actually forming part of the premises demised (a) the party evicting must have a good title (b) superior to that of the lessor and that of the lessee (c) and the tenant must have quitted against his will. Mr. Biswas has also referred to certain passages from Woodfall on 'Landlord and Tenant (Article 855)', where the lessee is evicted from part of the lands by title paramount, he will have to pay a rateable proportion for the remainder but if he be evicted from the entire lands by his landlord or his assigns, no apportionment, but a suspension of the whole rent, takes place. There is no suspension, however, if the eviction has followed upon some wrongful act of the lessee, such as a forfeiture or recovery of part of the lands in an action of waste. Where the tenant cannot obtain possession of a part of the demised premises, because it is held by a person claiming adversely to the lessor, no part of the rent can be recovered in an action upon the covenant to pay rent. Mr. Biswas has referred to Section 108(c) of the Transfer of Property Act. Under this section the lessee enjoys the security of an unqualified covenant for quiet enjoyment. The covenant for quiet enjoyment presupposes possession by the lessee, and therefore, unless he has first obtained possession, no action can be maintained upon it. The covenant in the unqualified form followed in the section covers the case of the superior landlord, or other persons claiming by title paramount, exercising a power of reentry or otherwise dispossessing the lessee. But it does not include a case of disturbance by persons having no lawful title or right of entry. Against them the lessee has his proper remedy, and does not require a covenant. Nor can he, on account of being evicted by such persons, be relieved of his liability to pay rent. It is no answer to a claim for rent to say that the lessee has heen compelled by officials exercising statutory powers to vacate the land, or that he has been dispossessed by other tenants holding under the same lessor. It is otherwise if the lessee is evicted by the lessor, for then according to the English cases which have been followed in India the obligation to pay rent is suspended or discharged altogether, even though the eviction relates to a part of the property only, unless it appears that the rent can be apportioned. On the other hand, Mr. Banerjee appearing for the opposite party has contended that 'title paramount' is that title against which there is ho defence. In this case according to him the petitioner is governed by the Non-Agricultural Tenancy Act and as such Sections 7 and 85 of the Act give protection to the petitioner. Hence it cannot be said that the petitioner has no defence against the acts of the so-called 'title paramount' and, therefore the acts of Government are not acts of title paramount. Mr. Banerjee has referred to a decision, reported in (1977) 1 Cal LJ 41, where it has been held that the action of the Government in demolishing certain structures should be backed by legal sanction and that the Government cannot demolish any structure erected on its land without taking recourse to law. Further it cannot be disputed that if the petitioner being in possession may continue in such possession unless evicted in due course of law. In this case, the petitioner had prima facie substantiated his claim to the property in question and since admittedly he was in possession for long span of time he can claim legal right to challenge the action of the Executive, if it be a high handed executive fiat, for the purpose of saving the disputed property. As there was no legislative sanction behind the action taken by the Government the respondents cannot dismantle the petitioner's structures without taking recourse to appropriate legal action for the purpose. This case has been cited by Mr. Banerjee to prove that in this particular case also the acts of Government i. e. of the Public Works Department was not backed by legal sanction and, therefore, the acts committed by Public Works Department are tortious for which there is remedy available to the petitioner in law and as such he cannot claim any abatement of rent so far as opposite party is concerned. On the other hand, Mr. Biswas has referred to the case reported in ILR 43 Cal 554 at p. 555 : (AIR 1916 Cal 63) wherein it has been held that where a tenant is sued for rent, he can set up eviction by title paramount to that of his lesson as an answer and if evicted from part of the land can claim apportionment of rent but the onus is on the lessor to show what is the fair rent of the lands out of which the tenant was not evicted. It has been found in this case that the tenant/petitioner has been deprived of a portion of land by the acts of the Public Works Department and hence he is entitled to apportionment of rent. Mr. Biswas has referred to another case reported in 33 Cal WN 559 : (AIR 1929 Cal 651) in order to controvert the argument of Mr. Banerjee that the petitioner is barred by Section 116 of the Evidence Act from denying the relationship of landlord and tenant in respect of the suit premises and by taking the plea of non-liability to pay on the ground that there has been demolition of a portion of the suit premises the lessor being not entitled to possession in law to that portion of the land from which he had been dispossessed by the Public Works Department. By doing so the tenant/petitioner was in fact disputing the landlord's title to the same on the basis of the principles laid down in the said case. Mr. Biswas however submits that by claiming abatement of rent, the petitioner/tenant is not actually disputing the landlord's title and Section 116 of the Evidence Act has no application to such a case. Against the covenant to pay rent, eviction by title paramount is a good defence which must be established by the party who claims it and the bar of Section 116 of the Evidence Act is not thereby attracted. To constitute a good defence three conditions must be fulfilled. The eviction must have been from something actually forming part of the premises demised; the party evicting must have a good title and the tenant must have quitted against his will as already observed above. These three conditions are satisfied in this case.
7. The learned Munsif found that the land in question was ordered to be demolished by the Governor and the demolition was not done by the defendant/petitioner as alleged by the opposite party. The learned Munsif also found the agreement Ext. 1 between the plaintiff and the Executive Engineer, Canals Division on behalf of the Governor of the West Bengal, was for three years from 1st of May, 1939 to 30th of April, 1942. But the plaintiff held over and paid rent to the Governor up to the period of 1975-76 viz. Ext. 5 and on the basis of these documents the learned Munsif found that the Government had not terminated lease of the plaintiff. Demolition was carried on sometimes in December, 1975 and the rent was paid subsequent to this date. The subsequent rent, thereafter, was accepted after the demolishing was completed, does not in any way affect the question as to whether the Government had the title paramount at the time the demolition was carried out. In fact, the lease having been determined and action taken by demolishing the structures on the ground that the lease has been determined, subsequent acceptance of rent by the Government does not detract from the possession of the Government as determined at the time of the demolishing the structure. The learned Munsif, however, seemed to think that by virtue of Ext. 5 Government was disentitled to claim as title paramount subsequent to Dec., 1975.
8. I am afraid, I cannot agree with this submission. The terms of lease having expired and Government had taken action by demolishing the structures on the ground that the lease was terminated; subsequent acceptance of rent does not detract from the position that what the Govt. did at that time, that is in December, 1975 was torlious and, therefore, the present petitioner could not take the plea that the action taken by the Government was done under its authority as title paramount. Whether Section 108(c) of the Transfer of Property Act will apply in such a case as a plea by the defendant that he was entitled to enjoy the suit premises without interruption and whether the same is available to the present petitioner in view of the fact that what was done by Government was done under its authority as title paramount and, therefore, the petitioner's claim to get proportionate abatement of rent on account of force-able expulsion from the portion of the suit premises as alleged is validly available to him.
9. In the circumstances, the learned Munsif is directed to reconsider the matter and after giving an opportunity to the parties to be heard in the matter make a finding as to the amount of rent which the petitioner may claim by way of proportionate abatement in view of the reduction in the area of premises occupied by him after the demolition of a part in 1975.
10. In the result, the case records are sent back to the learned Munsif for a finding as to the amount of reduction in rent that may be available to the defendant/ tenant as directed above.
11. The Rule is, accordingly, made absolute.
12. Let the records go down as early as possible.