1. This is an appeal by the first defendant in a suit for recovery of minimum royalty and other dues under a mining lease granted by the predecessor of the plaintiffs on the 28th Septembers 1901. The suit was instituted on, the 6th July 1917 and the claim covered the period of six years between the 14th April 1911 and the 13th April 1917. The defendant resisted the claim substantially on two grounds, namely, first that he was entitled to abatement, inasmuch as six bighas out of the thirty-two bighas of coal land included in the lease had been acquired under the and Acquisition Act; and, secondly, that as his possession of the mine had been interrupted by Mayer & Co., who were lessees of an adjoining mine under a grant made by the predecessor of the plaintiffs on the 22nd April 1897, the entire rent was suspended. The Subordinate Judge gave effect to the first contention and overruled the second, with the result that, on the 30th April 1919, the claim was decreed in part. The present appeal, preferred by the defendant against this decree, was heard on the 17th January 1921. In support of the appeal it was urged that, in view of the provision of Section 108(c) of the Transfer of Property Act, the appellant was entitled to a reduction of the rent payable by him, as a considerable portion of the mine let out to him had been flooded by reason of the act of Mayer & Co., who held the adjoining mine under the plaintiffs. The Court held that before the question of the true construction of Section 108 could be usefully discussed, it was necessary to ascertain facts which had not been investigated by the Court below. The Court accordingly directed the lower Court, under Order XLI, Rule 25 of the Civil Procedure Code, to try the following issues on additional evidence and to return the evidence to this Court together with the findings thereon and the reasons therefor: first, was there in fact an interruption of the possession of the defendant during the years in suit within the meaning of Clause (c) of Section 108 of the Transfer of Property Act; secondly, if there was such an interruption, was it attributable to any act on the part of Mayer & Co., as alleged by the defendant; thirdly, what were the terms of the grant made by the plaintiffs in favour of Mayer & Co.? The Subordinate Judge has held a local enquiry, taken the additional evidence required and submitted his findings. We have now to determine the appeal under Order XLI, Rule 26, Sub-rule (2).
3. The findings of the Subordinat Judge have been accepted by both the parties before us and may be summarised as follows:
First, that during the period from the 14th June 1911 to the 13th April 1917, there was interruption of the possession of the defendant in respect of an area of ten bighas fifteen cottahs and twelve chhattaks approximately in the top seam, while the balance, fifteen bighas four cottahs and eight chattaks, remained in fully workable condition and had during this period a shaft pit by which the first defendant extracted coal;
4. Secondly, that this interruption of possession was due to the unlawful act of Mayer & Co. in joining their mine to the defendant's mine by galleries encroaching upon the defendant's coal land;
5. Thirdly, that the terms of the grant in favour of Mayer & Co. were set out in the lease granted by the predecessors of the plaintiffs on the 22nd April 1897 to Hari Charan Singh.
6. The Subordinate Judge has found that, if Mayer & Co. had not driven galleries by encroaching into the coal land of the defendant and had not thus joined their mine to his mine, no water from their mine could have entered his mine which was thereby flooded and submerged. The immediate cause was the destruction of the barrier by Mayer & Co.; the ulterior cause was the robbing of pillars in the mine of Mayer & Co., and also in a natural channel which carried the surplus rain water of the locality into a neighbouring river. This removal of pillars naturally caused subsidence in their mine and also in the channel, thereby creating a passage for rush of a large volume of rain water and flood water into the mine of the defendant. There can be no doubt that the act of Mayer & Co. was, as between them and their landlords, entirely unauthorised by the terms of their lease and must be regarded as unlawful. In these circumstances, we have to decide whether such unauthorised act on the part of the lessees of the plaintiffs, absolves the defendant from liability to pay rent in accordance with his lease. The solution of this question depends upon the true construction of Section 108.
7. Clause (c) of Section 108 provides that, in the absence of a contract or local usage to the contrary, the lessor of immoveable property shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption. This provision secures for the lessee the benefit of an unqualified covenant for quiet enjoyment. A qualified covenant for quiet enjoyment protects the lessee against interruption by the lessor, his heirs and assigns, or any other person claiming by or under him, them, or any of them, whereas an unqualified covenant, protects the lessee against interruption by the lessor, his heirs and assigns or by any other person or persons whomsoever. The covenant, in the unqualified form, covers the case of interruption by the superior landlord or other person claiming by title paramount, exercising a power of re-entry, or otherwise dispossessing the lessee. But even such a covenant does not include a case of disturbance by persons having no lawful title or right of entry; for, 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. Reference may be made in this connection to the exposition contained in the classical judgment of Sir John Vaughan, Chief Justice of the Court of Common Pleas, in the case of Hayes v. Bickerstaff (1669) Vaughan. 118 : 124 E.R. 997 where he shows that the express covenant, like the implied covenant, protects the lessee only against lawful disturbance of strangers, and then summarises the 'inconveniences if the law should be otherwise.:'
I A man's covenant, without necessary words to make it such, is strain'd, to be unreasonable, and therefore improbable to be so intended; for, it is unreasonable a man should covenant against the tortious acts of strangers, impossible for him to prevent, or probably to attempt preventing.
2. The covenantor, who is innocent, shall be charg'd, when the lessee hath his natural remedy against the wrong-doer: and the covenantor made to defend a man from that from which the law defends every man, that is, from wrong.
3. A man shall have double remedy for the same injury against the covenantor, and also against the wrong-doer.
4. A way is open'd to damage a third person (that is, the covenantor) by undis-coverable practice between the lessee and a stranger, for there is no difficulty for the lessee secretly to procure a stranger to make a tortious entry, that he may therefor charge the covenantor with an action.
8. This principle was recognised by Mr. Justice Subramaniya Iyer in Vithilinga Padayachi v. Vithilinga Mudali 15 M. 111 at p. 121 : 5 Ind. Dec. (N.S.) 426 when he observed that by a covenant for quiet enjoyment, the lessee is to enjoy his lease against the lawful entry, eviction or interruption of any man, but not against tortious entries, evictions or interruptions, and the reason for the law is solid and clear, because against tortious acts, the lessee has his proper, remedy; against the wrong-doers. The decision of Mr. Justice Ranade in Tayawa v. Gurshidappa 25 B. 269 : 2 Bom. L.R. 1070 takes substantially the same view, when it lays down that the words 'without interruption'? in Section 108(c), give a lessee in India the same rights as lie would have under what is known in England as a covenant for quiet enjoyment in an unqualified form. The case then before the Court was, as in Gopanund Jha v. Lalla Gobind Pershad 12 W.R. 109 decided by Sir Barnes Peacock, C.J., and Jackson, J., that of interruption caused by the paramount owner of the property, and although it is stated that 'the lessee is protected against interruption from any person whomsoever,' it is made abundantly clear by the observations which follow that the lessee must protect himself against interruption by a person without lawful right or against wrongful disturbance by a stranger. The rule is thus now firmly settled that, like the express covenant, the implied covenant protects the lessee against all disturbance by the lessor whether lawful or not, save under a right of re-entry, but, as, against other persons, it protects the lessee only against, lawful disturbance: Wotton v. Hele (1670) 2 Wms. Saund. 177(b) : 85 E.R. 937; Anon. In re (1774) Lofft. 460 : 98 E.R. 747; Dudley v. Folliott (1790) 3 T.R. 584 : 1 R.R. 772 : 100 E.R. 746; Nash v. Palmer (1816) 5 M. & S. 374 : 17 R.R. 364 : 150 E.R. 1088; Granger v. Collins (1840) 6 M. & W. 458 : 55 R.R. 687 : 9 L.J. Ex. 172 : 151 E.R. 492; Young v. Raincock (1849) 6 C.B. 310 : 18 L.J.C.P. 193 : 13 Jur. 539 : 137 E.R. 124 : 78 R.R. 652; Jeffryes v. Evans (1865) 19 C.B. (N.S.) 246 : 147 R.R. 577 : 34 L.J.C.P. 261 : 13 L.T. 72 : 11 Jur. (N.S.) 584 : 13 W.R. 864 : 144 E.R. 781; Sandreson v. Berwick-upon Tweed (1884) 13 Q.B.D. 547 : 53 L.J.Q.B. 559 : 51 L.T. 495 : 33 W.R. 67 : 49 J.P. 781; Wallis v. Hands (1893) 2 Ch. 75 at p. 83 : 62 L.J. Ch. 586 : 3 R. 351 : 68 L.T. 428 : 41 W.R. 471; Muktar Ahmad v. Sundar Koer 19 Ind. Cas. 815 : 17 C.W.N. 960; Udai Kumar Dass v. Katyani Debi 69 Ind. Cas. 126 : 35 C.L.J. 292 : (1922) A.I.R. (C.) 87. It may be pointed out that, before the Transfer of Property Act, it had been maintained in a long series of decisions that if the lessee were evicted by title paramount to that of the lessor or by a person to whom he had given the land on lease, the lessee was discharged from the payment of rent and might claim abatement or suspension: Munee Dutt Singh v. William Campbell 16 W.R. 278; Munee Dutt Singh v. William Campbell 12 W.R. 149; Gopanund Jha v. Lalla Gobind Pershad 12 W.R. 109; Kadumbinee Dossia v. Kasheenath Biswas 13 W.R. 230; Kristo Soondur Sanyal v. Koomar thunder Nath Roy 15 W.R. 230. To the same effect was the decision in Benjamin Douzelle v. Girdharee Singh 23 W.R. 121 which held that in the absence of express agreement to the contrary, a landlord is bound by an implied obligation to indemnify the tenant against disturbance by his own act or by the acts of those who claim under him or by right paramount to him, but not against the wrongful acts of strangers. The same view is reflected in the judgment of Sir John Wallis, C.J. in Srinivasa Aiyangar v. Rangasami Aiyangar 25 Ind. Cas. 812 : 1 L.W. 858 where he states that a covenant for quiet enjoyment, as between lessor and lessee, even in its more extended form, is only a covenant against disturbance by somebody claiming under a lawful title and does not extend to disturbance by a trespasser.
9. In view of what must thus be recognized as settled law, the appellant has been driven to contend as a last resort, that Mayer & Co., who hold under a lease granted by the plaintiffs, may rightly be treated as included-within the category of persons claiming under them. This argument is attractive but fallacious. Iyord Esher, M.R., when pressed with, the identical argument, in Harrison v. Muncaster (1891) 2 Q.B. 680 : 61 L.J. Q.B. 102 : 65 L.T. 481 : 40 W.R. 102 : 56 J.P. 69 on the authority of Fry, L.J., in, Sanderson v. Berwick-upon-Tweed (1884) 13 Q.B.D. 547 : 53 L.J.Q.B. 559 : 51 L.T. 495 : 33 W.R. 67 : 49 J.P. 781. made an important observation which may bemuse-fully recalled here: 'The expression in that judgment, claiming, under him, must be restricted in its meaning to claiming a right under him to do the particular act complained of.' This interpretation led to the result that where a lessee of a mine was interrupted, not by any act which the lessor had authorised, but by a flow of water which he had not authorised, the lessor was not liable under his, covenant for quiet enjoyment; see also Jones v. Consolidated Anthracite Collieries (1916) 1 K.B. 123 : 85 L.J.K.B. 465 : 114 L.T. 288. The same construction was placed upon the expression, claiming under him, by Bray, J. in Williams v. Gabriel, (1906) 1 K.B. 155 : 75 L.J.K.B. 149 : 94 L.T. 17 : 54 W.R. 379 : 22 T.L.R. 217 when he ruled that a person claiming under the lessor means a person claiming under him the right to do the act complained of, so that if a lessor parts with the property or any adjoining property to a third person, and that person is in a position to rightfully-claim under his title from the lessor, that he is authorised to do those acts, the lessor, will be responsible. If this interpretation were not adopted, the lessor would be responsible for all interruptions by any person-claiming, title through him, whether assignee, or under-tenant, howsoever willful or negligent the interruption. There must clearly, be some limit, and we are of opinion that the limit indicated by Lord Esher is reasonable. It comes to this, that the lessor becomes bound for any act of interruption by himself or by any person whom he has expressly of; impliedly authorised to do the act. This, is good sense and fits m with what the parties might well have contemplated, because the lessor has really authorised the acts to be done; but to hold that the parties contemplated that the lessor was to be responsible for wrongful or negligent acts which he had not authorised, would plainly be beyond reason. This principle explains the decision in Sanderson v. Berwick-upon-Tweed (1884) 13 Q.B.D. 547 : 53 L.J.Q.B. 559 : 51 L.T. 495 : 33 W.R. 67 : 49 J.P. 781 where the Court of Appeal held a lessor responsible, because his tenant of adjoining land had, in the proper and contemplated use of certain drains, damaged the plaintiff (another tenant of his), but refused to hold the lessor responsible for excessive user of those drains. The test formulated by Lord Usher, it will be found, renders intelligible the decisions in Ludwell v. Newman (1795) 6 T.R. 458 : 3 R.R. 231 : 101 E.R. 647; Evans v. Vaughan (1825) 4 B. & C. 261 : 28 R.R. 250 : 6 Dowl. & Ry. 349 : 3 L.J. (O.S.) K.B. 213 : 107 E.R. 1056; Calvert v. Sebright (1852) 15 Beav 156 : 92 R.R. 361 : 51 E.R. 496; Carpenter v. Parker (1857) 3 C.B. (N.S.) 206 : 111 R.R. 622 : 27 L.J.C.P. 78 : 6 W.R. 98 : 140 E.R. 718; Jeffryes v. Evans (1865) 19 C.B. (N.S.) 246 : 147 R.R. 577 : 34 L.J.C.P. 261 : 13 L.T. 72 : 11 Jur. (N.S.) 584 : 13 W.R. 864 : 144 E.R. 781; Rolph v. Crouch (1867) 3 Ex. 44 : 37 L.J. Ex. 8 : 17 L.T. 249 : 16 W.R. 252 and White v. Jameson (1874) 18 Eq. 303 : 22 W.R. 761; where the interference with the lessee was by a person whose title arose by a prior act or procurement of the lessor, see also Harmer v. Jumbil Tin Areas (1921) 1 Ch. 200 : 90 L.J. Ch. 140 : 124 L.T. 418 : 65 S.J. 93 : 37 T.L.R. 91 The same principle appears to have been recognised in Kali Prasanna Khasnabish v. Mathura Nath Sen 34 C. 191 where it was ruled that a lessee, who may have lost possession of a portion of the lands covered by his lease, was not entitled to suspend the payment of rent, if the dispossession had been effected, not by the landlord, but by other persons who were subsequent lessees under him in respect of different lands and had no authority to interfere with the possession of the prior lessee. In the case before us, there was no express covenant for quiet enjoyment in. the lease granted to the defendant, and his fights must be determined with reference to Section 108 alone. On the other hand, there was an express engagement by the defendant to pay the prescribed royalty, even if no coal could be raised On account of difficulties in working'. In these circumstances we hold that the remedy of the defendant, if any lay against Mayer & Co., 'their wrongful interference could not be treated as an interruption by persons claiming under the lessors, such as could be successfully set up in answer to the claim for rent made by the lessors in the present action. We hold further that there was no covenant for quiet enjoyment, either contractual or statutory, as against tortious interruption by wrong-doers.
10. The result is that the decree made by the Subordinate Judge on the 30th April 1919 is affirmed and this appeal dismissed with costs. There will be one hearing fee only and each party will bear his own costs of the further enquiry by the lower Court.