1. This is an appeal by the Plaintiffs against a decision of the Additional Subordinate Judge, Backerganj, confirming a decision of the Munsiff of the 3rd Court of Perojpur. The plaintiff sued for rent for the years 1322 to 1325 under a lease dated the 5th March 1879; whereby in respect of the demised area of 8 bighas rent at the rate of Rs. 35 a year was reserved for the whole area comprised in the demise. The defence of the defendants was firstly, that the rent had been paid and secondly, that after the lease the plaintiffs in the year 1897 let out a portion of the land comprised in the demise of 1879 to other persons. Consequently, they contend, and the Courts have so found that the defendants were dispossessed of roughly half of the demised area and they accordingly say that under these circumstances they are not liable to pay rent. Both the lower Courts have taken this view and have dismissed the suit.
2. Various arguments were urged before us on behalf of the appellants. Firstly it, was stated that the rent had been paid by the defendants at the rate reserved in the kabuliyat even after the dispossession at any rate, from the year 1902 when the Courts found that the dispossession had taken place, and accordingly, it is urged before us that it would be inequitable that we should now hold that the rent should remain in suspense because a; portion of the originally demised area. has been taken away from the defendants and we were referred, in support of this argument, to the. case of Ram Narain Chuokerbuti v. Poolin Behary Lall Singh (1872) 2 C.L.R. 5. In that case the Chief Justice in delivering the judgment of the Court held that as 24 years had elapsed since a portion of the demised area had been taken away and the rent during that period had been paid at the old rate the Court would assume that there had been some arrangement in spite of the decrease of area and that the rent should be paid at the old rate. It is noticeable in that case that dispossession was not due to the direct act of the landlord but to the fact that a portion of the land was taken for the construction of a railway. But in any case we do not think that it is possible for us to act on this view for there is no finding by either of the Courts below that the rent had been paid at the rate reserved by the kabuliyat since the date of dispossession in the year 1902 and in the absence of such a finding we do not think that we should be justified in presuming in second appeal that the rent had always been paid at this rate from the year 1902.
3. Then it was contended on the basis of certain decisions to which we were referred that in any case there should not be suspension of the whole rent but merely an abatement of rent corresponding to the area by which the tenancy has been diminished and we have been referred to numerous cases. We think broadly that the decisions lay down, that where a tenant has never been put in possession of the whole area comprised in the demise but has taken possession of a portion thereof the Courts have fixed a rate of rent for the area taken possession of, to be paid by the tenant on the ground that although he has contracted for the whole area he has elected logo into possession of a portion only of the area. And where under circumstances over which the landlord had no control the tenant has not been given possession of the whole area the Courts have decreed the rent in proportion to the area of the land of which the tenant has obtained, possession. But we do not think that there is any case which has decided that' where a tenant has been in possession of the whole demised area and subsequently has been deprived of a portion thereof by the action of the landlord it is open to the landlord to come to Court and ask the Court to fix a rent for the portion of the area which remains in the possession of the tenant. We think that in all such cases the Courts have held that the landlord is not entitled after dispossessing the tenant from a portion of the demised area to sue for rent in respect of the whole or for any portion thereof.
4. In this view of the state of the law we think that the appeal must fail and that as the tenants have been dispossessed by the action of the landlord of a portion of the holding and as the rent is fixed for the whole holding and not at so much per bigha the landlord is not entitled either to the whole rent or to rent in proportion to the land which now remains in the possession of the tenants.
5. The appeal accordingly fails and is dismissed with costs.
6. I agree.