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Krishna Chandra Roy Vs. Surendra Nath Bandopadhya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal385,137Ind.Cas.696
AppellantKrishna Chandra Roy
RespondentSurendra Nath Bandopadhya and ors.
Cases Referred and Debendra Prosad v. Paresh Math
Excerpt:
- .....it is contended that the court of appeal below erred in holding that the decision in the previous rent suit operates as res judicata.16. secondly that regard being had to the fact that the dispossession, if any, took place more than 12 years before the suit, the lower appellate' court should have held that the doctrine of suspension of rent did not apply in the present case. thirdly it is argued that in any event the learned subordinate judge ought to have held that that principle does not apply to the liability to pay cesses, and that there ought to have been a decree for cesses. in my judgment there is no force in any of these contentions. 'with regard to the first point it was found in a previous suit that the rent payable in respect of this taluk consisting of three mannas is a lump.....
Judgment:

Suhrawardy, J.

1. This appeal by the plaintiff landlord arises out of a suit for recovery of arrears of rent and cesses after settlement of rent. The defence was that the defendants having been dispossessed 1 by the plaintiff from a great portion of the Sikmi taluk in suit, rent should be suspended and that the plaintiff was not entitled to any relief asked for in the suit. Both the Courts below have dismissed the suit. The facts found are that the Sikmi taluk held by the defendants comprises three mauzas, Nan-nar, Gaoail and Kaliara or Kulla. The plaintiffs long time ago dispossessed the defendants from the two mauzas Nannar and Gaoail and also from a part of Kulla. On this finding the Courts below have dismissed the plaintiff's suit holding that they are entitled to recover neither rent nor cesses from the defendants and that therefore their suit for assessment of rent must fail.

2. The plaintiff's have appealed and it is argued on their behalf that the view taken by the Courts below on law is not correct. It appears that in 1918 a suit for rent was brought by the plaintiffs against the defendants. That suit ended similarly and was dismissed in all the Courts including this Court. It was there held that the plaintiffs having dispossessed the defendants from a portion of the leasehold were not entitled to recover any rent or cesses in respect thereof. At the time of the hearing of the appeal, being Second Appeal No. 2300 of 1920, by this Court, a point was raised that the defendants having been out of possession of the disputed land for more than 12 years, they could not plead suspension of rent. It was observed in the judgment of this Court on this point that this point was not raised in the suit, and therefore could not be considered then but that the plaintiffs might raise it in a properly constituted suit. It is apparent that due to this observation in the judgment the present suit has been brought.

3. In this suit the plaintiffs allege that the defendants according to the lease should have been in possession of about 23 acres of land. But now it has been found by the district settlement that they are in possession of about 88 acres. The plaintiffs therefore pray that the rent of the quantity of land in possession of the defendants may be assessed and a decree made in favour of the plaintiffs for the years in suit. The Courts below have held that the plaintiffs' claim for assessment of rent is barred by the principle of res judicata.

4. Mr. Guha has very ingeniously argued this case and tried to get over the bar by contending that the present suit is one for assessment of rent while the previous suit was for rent only, and further the present suit is based upon the Record of Eights for assessment of rent of more lands than the defendants admitted to be in their possession out of the taluk. The learned Subordinate Judge has rightly observed that the question a? to whether the plaintiffs are entitled to recover any rent from the defendants is res judicata as between the parties on account of the decision in the suit of 1918, from which arose S.A. No. 2300 of 1920, Krishna Chandra v. Bhagabati. The learned Subordinate Judge is also right in saying that as the plaintiffs are not entitled to recover rent from the defendants they cannot be held to be entitled to claim assessment of rent, for assessment of rent means apportionment of rent and subsequent recovery of it as claimed in the suit by the plaintiffs. If a landlord dispossesses a tenant from a portion of the tenure, he is not entitled to recover any rent from the tenant unless he restores the portion from which his tenant has been dispossessed to him and it makes no difference that at some time the tenant is found to be in possession of some more lands but not the entire tenure. But Mr. Guha argues that it is a proper case in which there should be an apportionment of rent. I do not see what special circumstances exist in this case which entitle the plaintiffs to claim apportionment of rent. The findings of the Courts below are that the taluk comprising the three mauzas bore a lump rent and that the plaintiffs dispossessed the defendants from a great portion of the lands comprised in the taluq and that this happened many years ago. Since then nothing has been done by the plaintiffs to restore the defendants to possession of the taluk they were originally dispossessed from. Reliance has, however been placed upon a certain observation made in Sushil Kumar v. Rajani Kanta : AIR1927Cal737 . The observation is to the effect that the doctrine of suspension of rent has been applied in cases where the rent reserved is a lump sum for the whole land, but there is no authority for the proposition that in every such case there should be an entire suspension of rent, if there was dispossession from any part, and no apportionment should be allowed. This observation was unnecessary for the purpose of that case, as there the rent was fixed at so much per bigha and it came strictly under the decision of the Judicial Committee in Katyani Debi v. Udoy Kumar Das . It has further been dissented from in a subsequent case, Abhoya Charan v. Hem Chandra : AIR1929Cal568 . It is not profitable to discuss the question whether in some cases total suspension should not be; allowed and effort should be made to apportion rent, for the consensus of the. authorities commencing almost from Gopanund Jha v. Lalla Govind Persad [1869] 12 W.R. 109 is that where the lessor enters forcibly into part of the land, the lessee is discharged from payment of the whole rent till he Us restored to possession of the whole because it is the duty of the lessor to protect and defend the lessee and not to disturb him in his possession. It may be that where the lessor commits an honest mistake about the extent of the property leased including in it some portion over which he had no disposing power or was the innocent cause of the dispossession of the lessee by a third party from a portion of the leasehold or otherwise acts bona fide, he is entitled to some relief. But the case before us presents no such aspect as to enable us to. give any relief to the plaintiffs.

5. It is next argued that the defendants being out of possession of the disputed portion of the taluk for more than 12 years they have lost the right to recover possession thereof from the plaintiffs and that therefore they have rendered themselves liable to pay rent for the portion in their possession. This argument is based also upon a certain observation made in Sushil Kumar Biswas' case already referred to where it is remarked:

If the tenant does not take any step but allows trespass to continue it may be because He finds it advantageous to himself. I do not see why he should not pay rent for the land of which he remains in possession.

6. If effect is given to this contention, it would land us in absurd positions. If a landlord by force or otherwise keeps the tenant out of possession of a portion of a holding, he thereby forces the tenant to accept the tenancy different from what he originally stipulated for. Moreover, it will create a new tenancy against the will of the tenant. I do not think that any Court of justice should encourage the landlord to dispossess his tenant and by keeping him out of possession for some time succeed in creating a different tenancy. There is nothing to prevent the tenant profiting by the tortious act of the landlord and holding the portion left to him without payment of rent. If the rent is suspended under the law, it is suspended not for a particular period but until the tenant is restored to possession of the original tenure. There is no justification for creating a new law that the suspension will 'continue for only 12 years and not more. This contention, therefore also fails.

7. Lastly it has been argued that the plaintiffs are entitled at any rate to a decree for cesses. The lower appellate Court has held that this question too is barred by the principle of res judicata due to the decision in Second Appeal No. 2300 of 1920. In that case the plaintiff claimed both rent and cesses. The suit was dismissed by the trial Court. The plaintiff appealed on the general question of suspension of rent. Prom the judgment of the lower appellate Court in that case it appears that the question of their right to recover cesses apart from rent was not raised before it. In the second appeal to this Court, the question that the plaintiffs were entitled to cesses was however raised. The appeal was heard by a Bench of which I was a member and we observed in our judgment that the point about road-cess as distinct from rent was not raised in either of the Courts below as was apparent from their judgments, and we further expressed our opinion that there was great force in the submission made on behalf of the respondents that rent included cesses and that it was argued with reason that the suspension of rent under the law included suspension of all payment by the tenant to the landlord which may be considered as rent. This opinion of ours was based on some cases which held that cess was rent for certain purposes.

8. Mr. Guha has made further submission on this point, and after giving further consideration to the matter I am doubtful if the view I took in the previous case that cesses should be considered as included in rent for the purpose of suspension is correct. I do not want to discuss this question at length and I only desire to say that if the question arises in a proper case I may find myself holding a different view. I am not sure that suspension of rent will also carry with it suspension of cesses, which are levied under a special enactment and liability to which attaches to the land and should be borne by the person in possession of it. But as I am of opinion that this question too is barred by res judicata, it is not necessary to discuss' it further. The question relating to the cesses is affected by res judicata either on account of our previous decision or on the ground that it should have been raised in the previous suit, and not having been then raised it cannot be raised in the subsequent suit: Fateh Singh v. Jagannath Baksh Singh . Moreover, a decision which is based upon several grounds would, operate as res judicata with respect to each of the grounds: Ram Behari Sarkar v. Surendra Nath [1913] 21 I.C. 979. If a decision is based upon two findings it cannot be said that the finding which is recorded first should operate as res judicata and not the subsequent finding. If cannot be maintained that as any one of the findings is sufficient for the disposal of a case, none of them should operate as res judicata. The judgment delivered by this Court in the previous suit of 1918 observed that the point was not raised in either of the Courts below and therefore we could not give effect to it and we further expressed our opinion there in that cess was included in rent, and that when rent was suspended, payment of ceases was also suspended. It may be that the latter view is not correct; hut so far as the plaintiffs are concerned the finding cannot be questioned in this suit.

9. Considering the length of the litigation between the parties we think it desirable that further dispute should be finally set at rest and the defendants saved from further harassment. It has now been conclusively found that the plaintiffs are not entitled to rent from the defendants, so long as the defendants remain out of possession of the portion of the Sikmi Taluk Nor are they entitled to cesses in respect of the land. It may be noted hero that the settlement proceedings have nothing to do with the plaintiffs' cause of action because the record was published before the suit of 1918. The result is no doubt unfortunate, but the situation is of plaintiffs' own making. No consideration arises in this case to induce me to give any relief to the plaintiffs, and in the result I dismiss the appeal with costs.

Graham, J.

10. This appeal, in which the plaintiff's are appellants, arises out of a suit for recovery of arrears of rent on assessment together with cesses and damages.

11. The rent sued for was in respect of a Sikmi Taluk named Jagannath Kay consisting of three mauzas, Kaliara, Nannar and Gaoail. It appears that the plain. tiffs had previously brought a suit for rent for the years 1321 to 1324 B.S. in respect of the same taluk, it being found in that case that the defendants had been dispossessed from the lands of two of these mauzas, Nannar and Gaoail, as well as from a portion of the lands of mauza Kaliara. That being so the Court dismissed the suit holding that the entire rent, which was a lump rent, was liable to be suspended.

12. The plaintiffs then filed a second appeal which was also dismissed.

13. The defence in the present suit was that the suit was not maintainable, that the rent was a lump rent and indivisible, that the suit was barred by res judicata as a consequence of the decision referred to above, and that the entire rent should he suspended as the defendants had not Leon restored to possession of the lands from which they had been dispossessed My the plaintiffs. The trial Court dismissed the suit holding that it was not maintainable.

14. On appeal by the plaintiff that decision was confirmed by the learned Subordinate Judge who also dealt with the question whether the plaintiffs wore entitled to recover road cess notwithstanding the dismissal of their suit for rent. This point does not appear to have been specifically raised at the trial and no issue was framed upon it. The Subordinate Judge observed that ho had not been shown any authority for the view that a tenant was liable to pay road cess in respect of lands in his possession, when there was a total suspension of rent. He hold therefore that the road cess also should be suspended.

15. The learned advocate for the appellants has urged three points in this appeal. Firstly, it is contended that the Court of appeal below erred in holding that the decision in the previous rent suit operates as res judicata.

16. Secondly that regard being had to the fact that the dispossession, if any, took place more than 12 years before the suit, the lower appellate' Court should have held that the doctrine of suspension of rent did not apply in the present case. Thirdly it is argued that in any event the learned Subordinate Judge ought to have held that that principle does not apply to the liability to pay cesses, and that there ought to have been a decree for cesses. In my judgment there is no force in any of these contentions. 'With regard to the first point it was found in a previous suit that the rent payable in respect of this taluk consisting of three mannas is a lump rent. It was further found in the previous rent suit (No. 936 of 1918) that the defendants had been dispossessed from the lands of mauzas Nannar and Gaoail, and also from some of the lands of mauza Kaliara and that the entire rent was liable to suspension. That decision clearly operates as res judicata; see Purna Chandra v. Rasik [1911] 9 I.C. 568.

17. The second contention is equally devoid of substance. No authority has been shown to us in favour of the proposition advanced, and it is obvious that, if this view wore accepted, it would serve as an incentive to landlords to keep their tenants out of possession so as to evade the operation of the doctrine of suspension of rent.

18. The only question which really arises on the appeal, and the argument has been mainly directed to this, is whether the plaintiff's can claim the right to recover cesses from the defendants in respect of the lands in their possession notwithstanding their inability to recover rent. It is argued for the. appellants that cesses are distinct from rent, and that, even if plaintiffs are not entitled to get rent they are at all events entitled to recover cesses.

19. In my judgment the finding upon this point also must be against the appellants. The same contention was raised in the previous second appeal to which reference has been made above (Appeal from Appellate Decree No, 2300 of 1920). It has then negatived on two grounds: first: that it had not been raised in either of the Courts below; and secondly, on the ground that rent includes cesses, and that therefore suspension of rent under the Law would presumbly include suspension of all payments by the tenants to the landlord which may be considered as rent. Certain authorities of this Court, Mohesh Chandra v. Umatrao [1881] 16 Cal. 638 Nalim Chand v. Banse Nath [1894] 21 Cal. 722 Kishore Mohan v. Saradamoni [1897] 1 C.W.N. 30 and Debendra Prosad v. Paresh Math [1906] 4 C.L.J. 119 were referred to in support of that view. The decision upon that point must also operate as res judicata in the present suit. Even however if it did not, I should be prepared to hold, speaking for myself, that suspension of rent involves suspension of cess also. The definition of 'rent' in Section 3 (5), Boa. Ten. Act, supports the view that it includes cess. It is in these words:

Rent means whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land hold by the tenant.

20. In conjunction with this must be road Section 41, Cess Act, which lays down that every holder of an estate, tenure, or raiyati is liable to pay cess, and in the case of a tenure the cess is payable to the holder of the estate or tenure, so that it is a lawful liability. It may be argued that it is not payable on account of the use or occupation of the land held by the tenant. In one sense that is true, but in another and perhaps equally true sense it is, inasmuch as it is a liability arising directly cut of the use and occupation of the land and inseparable from it. It seems to me that the inability to recover rent involves as a natural and logical consequence inability to recover cess, and that the plaintiff having broken his contract, and having failed to restore the defendants to possession of the lands from which he has dispossessed them, is debarred from recovering upon the contract at all. The result will no doubt be unfortunate for him since he will have to pay cess for the entire land, although a portion of the land may admittedly be in the possession of the defendants, but he has only himself to blame for this consequence which arises out of his own breach of the contract.

21. It was argued on behalf of the appellants that Section 50, Cess Act, is applicable in the circumstances of this case, as the land in occupation of the defendants is held 'without payment of rent'. In my opinion this section has no application since it relates as the head note and marginal note show, to rent-free lands. No doubt in the present instance the land is being rent-free in the sense that no rent is being paid for it because the rent is temporarily suspended. But the words, in the section are not in my opinion used in that sense and refer to rent-free lands in the sense of lakheraj lands as distinguished from rent-bearing lands.

22. For the reasons given I agree that the appeal must be dismissed.


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