1. This appeal is in a rent suit which the Maharaja of Burdwan instituted against the appellant for the years 1345 to 1348 B.S. in respect of a patni tenure lot Radhanagar. The plea that the tenant took was a plea of total suspension of rent by reason of the disturbance of her possession by the landlord. The learned Subordinate Judge gave effect to the plea and dismissed the suit. On appeal, the learned District Judge has held that the tenant is not entitled to total suspension of rent, but she was only entitled to proportionate abatement. The tenant has preferred this appeal and the landlord, the Maharaja of Burdwan, has filed a memorandum of cross objection. The tenant's contention in the appeal is that the judgment of the learned Subordinate Judge ought to be restored. The landlord's contention in support of the memorandum of cross objection is that the suit ought to have been decreed in full.
2. The patni originally belonged to Sangliram Panja and his co-sharers. In execution of a money decree obtained against Sangliram Panja and his co-sharers, the patni was sold on 11-5-1929 and was purchased by one Nabadwip Panja. Before the confirmation of the sale, Nabadwip Panja sold the patni on 19-6-1930 to Tirthabala Dasi, the appellant before us. The landlord's fee was not, however, paid for a long time. It was paid by Tirthabala Dasi in April 1937 and the sale at which Nabadwip Panja has purchased the patni was accordingly confirmed as late as on 30-4-1937. On the confirmation of the sale, the title of Nabadwip Panja dated back to 11-5 1929 namely the date on which he had purchased at the court sale and Tirthabala's title accrued on the basis of the said title of Nabadwip Panja from the date of her purchase, namely, 19 6-1930. Before the confirmation of sale of Nabadwip Panja on 30-4-1937, that is to say, for a period of about 8 years that elapsed between the actual sale to Nabadwip Panja and the confirmation of the sale the title of Nabadwip Panja was in an unsettled state. The Maharaja of Burdwan filed certain proceedings against Sangliram Panja and his co-sharers for rent due to him in respect of another tenancy. In those certificate proceedings the Maharaja of Burdwan put up the patni, lot Radhanagar, to sale and purchased it himself on 22-5-1933. This sale was confirmed on 5-6-1933. Till before the confirmation of sale in favour of Nabadwip Panja, the Maharaja treated himself as the purchaser of the patni and he was justified in doing so because Nabadwip Panja's sale had not been confirmed. On 14-6-1936, the Maharaja of Burdwan took delivery of possession of the patni and issued notices to the tenants holding under the patni to pay rent to himself and not to Tirthabala Dasi or anybody else. He followed up those notices by instituting rent suits against those subordinate tenants. Last of those rent suits, we are told, was instituted by him in the month of Baisakh 1344 B.S. which would be middle of April 1937, that is to say a few days before the confirmation of sale of Nabadwip Panja. He has got decrees in some of those rent suits. He instituted a suit against Tirthabala Dasi to recover rent in respect of the said patni for the years 1341 to 1344 B.S. That suit has a chequered history and an appeal in connection with that suit, namely, Second Appeal No. 1282 of 1943 is still pending in this Court. Whatever we may say in this appeal should not be taken in any way to affect the decision of the said second appeal. On 15th April 1942 he instituted the suit in which this appeal arises to recover from Tirthabala Dasi rent of the said patni for the years 1345 to 1348 B.S.
3. The first question which arises before us is whether during the period in suit, that is to say, 1345 to 1348 B.S., the patnidar was not in peaceful possession by reason of the hostile acts of the landlord, the Maharaja of Burdwan. On this point, the evidence stands thus. The Maharaja of Burdwan issued a large number of notices in 1936 to the subordinate tenants not to pay rent to Tirthabala Dasi. He instituted rent suits against subordinate tenants and got decrees. In 1939, he filed a petition in the earlier rent suit where he admitted the title of Tirthabala to the patni. He, however, did not withdraw the notices that he issued to the tenants in 1936 not to pay rent to Tirthabala Dasi. On the other hand, in January 1938 that is Magh 1344 he issued further notices to the same effect on some tenants. The evidence further is that in the years 1345 or thereafter, his officers did not enter the patni mahal to make any collection, nor has the Maharaja realised or has attempted to realise any rent for the period 1345 to 1348 B.S. from the subordinate tenants, nor has he instituted any rent suit covering that period against subordinate tenants. That is the finding of the learned Subordinate Judge and the evidence fully justifies that finding. There is, however, oral evidence coming from the side of the defendant to the effect that by reason of those notices which the Maharaja had issued to the subordinate tenants in 1936 and later on in January 1938 which had not been withdrawn yet, the subordinate tenants and bhagdars are not paying rents and bhag produce to Tirthabala Dasi, the patnidar, even at the date of the deposition of those witnesses. This oral evidence has been believed both by the Subordinate Judge and the District Judge. There is, therefore, some evidence in support of the District Judge's finding that the patnidar, the appellant, was disturbed in the enjoyment of the patni during the years 1345 to 1348 by reason of the act of the landlord. This being so, we cannot disturb the finding of the learned District Judge in second appeal. It must, therefore, be held in agreement with the learned District Judge that the patnidar has proved dispossession and that dispossession covers the period for which rent is claimed by the landlord. The cross-objection must therefore be dismissed.
4. Mr. Lala who is appearing for the appellant submits that as the landlord had dispossessed his client during the period in claim there must be total suspension of rent. For the purpose of supporting his contention he relies upon many decisions of this Court. All those decisions are reviewed in Mahim Chandra v. Karam Ali : AIR1929Cal516 and Mahammed Ali Fakir v. Karam Ali : AIR1935Cal134 . Those cases support his proposition. The cases in Mahim Chandra v. Karam Ali : AIR1929Cal516 and Mahammed Ali Fakir v. Karam Ali : AIR1935Cal134 proceed upon the basis that the view taken therein had the support of the decision of the Judicial Committee in Kalyani Debi v. Uday Kumar Das . In the case, however, Ramlal Dutta v. Dhirendra Nath Sir George Rankin in delivering judgment of the Board expressly stated that that was not the effect of the decision of the Judicial Committee in Kalyani Debi v. Uday Kumar Das cited above. Although the abovementioned case. Ramlal Dutta v. Dhirendra Nath was not a case of dispossession or eviction by the landlord but was a case of failure on the part of the landlord to put the tenant in possession of all the demised lands, Sir George Rankin considered the question of applicability of English doctrine of suspension tenant on a dispossession of the tenant by the landlord. In that judgment he indicated that it would be wrong to apply that doctrine to tenancies in Bengal blindly. He further pointed out that that doctrine was a peculiar doctrine of the English Common Law and that doctrine was generally unsuitable to tenancies in Bengal, the nature of which were unlike the nature of ordinary leases in England. But in the last portion of his judgment he reserved ex majori cautela the question as to the applicability of the English doctrine of suspension of rent for further consideration by the Board. As we read that judgment it seems to us that the Privy Council laid down that the English doctrine of suspension of rent ought not to be applied to agricultural tenancies, in Bengal, specially of a permanent nature as a matter of course. In the light of that interpretation of the said judgment it is, therefore, necessary to examine the facts of this particular case to see whether this is a case in which total suspension of rent is to be decreed or proportionate abatement. We have already stated in the earlier part of our judgment that the Maharaja of Burdwan was justified in 1936 in issuing notices on the subordinate tenants and in suing them for rent in suits filed in Baisak 1344, because at that time the sale to Nabadwip Panja had not been confirmed owing to the laches of Nabadwip Panja and his purchaser Tirthabala Dasi. He, no doubt, issued few notices to the tenants in January 1938. But there is nothing on the record to show that he issued those notices after he had known that Nabadwip Panja's sale had been confirmed. It is quite clear that in 1939 he came to know of the confirmation of the said sale, for in the other rent suit he filed an application admitting the title to Tirthabala Dasi. It is also quite clear on the evidence that after 1344 B.S. he did not interfere with the collections of the patnidar actively. No doubt, by not withdrawing the earlier notices that he served on the subordinate tenants the effects of those notices on the subordinate tenants continued. On these facts, we are of opinion that this is not case in which total suspension is to be decreed. It is a case where according to justice, equity and good conscience the patnidar can only claim proportionate abatement of rent.
5. In this view of the matter, we affirm the judgment and decree of the learned District Judge, The appeal is accordingly dismissed. As both the appeal and the cross objection have failed we direct each party to bear their respective costs in this Court.