1. This second appeal arises out of a suit for rent valued at Rs. 22. A preliminary objection was taken that no appeal lay, bat we find that in both the Courts, an issue was raised as to the amount of the annual rent and it was decided that the annual rent was Rs. 12. It is sought to be argued, on the authority of the case in Baidyanath Bahara v. Dhon Krishna Sirkar 5 C.W.N. 515 that there must be some contest upon the point, but the law is perfectly clear and so is that decision, that it is only necessary that the Court should have decided the annual rate of rent, whether directly or incidentally. In this case a direct issue was raised, so that there can be no doubt about the right of appeal.
2. The argument of the learned Doctor, who appeared for the appellant, raised what is a new point in this country, although it was pointed out as long ago as 1881 by Mr. Justice Field in Lodai Mollah v. Kally Dass Roy 8 C. 238; 10 C.L.R. 581 that such a defence might be taken to a rent suit in Bengal. The learned Doctor took the plea that in this case the defendant had been evicted by a title paramount to his landlord and that, therefore, he was not bound to pay any rent to the plaintiff. Now it has been laid down by the English authorities that to constitute a good defence in these cases, three conditions must be fulfilled, the eviction must be 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. In this case, the only difficulty was that there was no forcible expulsion, but this has been held by all English authorities to be unnecessary. All that is necessary is that the landlord should claim the rent and the tenant on such notice attorn to him because he is not entitled to resist the claim. We need only refer to the cases which are quoted in Foa on Landlord and Tenant, 4th Edition, p. 169. Hill v. Saunders 4 B. & C. 529; 7 D. & R. 17; 28 R.R. 375 is the leading case. We entirely agree with the legal doctrine which is here laid down and which is in accordance with common sense. But we find that, as a matter of fact, no such eviction by title paramount was ever pleaded by the defendant, and that on the contrary, he pleaded something totally different. He made an averment which has been found to be false that he had held this land under an Amaldari for 12 years, at a rent of Rs. 6. Now, it does appear that in the year 1894, there was some talk of Amaldari but the learned Judge has said that there is no proof of it, and that even if it was given, it would not help the defendant as it was an unregistered document. Be that as it may, this is not the case which the defendant has to prove. He has to prove that in the year 1315 after he had himself admitted to the Settlement Officer that the plaintiff was his landlord, the zemindar's amla came to him and put pressure upon him and so he had to attorn to the superior landlord who holds the title paramount. It is found by the learned Judge that, as a matter of fact, after he had admitted his tenancy before the Settlement Officer under the plaintiff, he was approached by the amla of the zemindar, but the treatment far from having been in the nature of pressure appears to have been in the nature of a bribe. He argues that they told him he would get his rent reduced to Rs. 6 if he would give them a kabuliat whereupon he proceeded to give them a kabuliat. We would be reluctant to hold that this falls within the English law of quasi eviction. We think that the argument in this Court has been based upon the finding of the learned Judge about this settlement proceedings, and that nobody, last of all the defendant, ever thought of this question of eviction by title paramount before the case came into this Court. The defendant cannot, we think, be allowed to make a new case of this kind and at any rate, as far as the rent now claimed is concerned, the case must fail, for the kabuliat in favour of the paramount title was not executed till the year 1315.
3. The appeal, therefore, is dismissed with costs.