1. This is an appeal from a judgment and decree of the Subordinate Judge of Murshidabad dated 12th September 1924 which reversed a judgment and decree of the Munsif of Jangipur dated 29th March 1923.
2. The appellants brought a suit against the respondents for recovery of arrears of rent, cess and damages for the years 1325 to 1328 B.S. at the rate of Rs. 18-5-9 per year. The main defence of the respondents was that there should be entire suspension of rent as the appellants dispossessed the respondents from 5 bighas 8 cottas of land and that the holding in respect of which the rent suit was brought consisted of 25 bighas odd and was held at a rental of Rs. 15-6-11 gandas. The defence also alleged that there should, in any event, be proportionate reduction of rent.
3. The Munsif decreed the suit in part. He allowed the claim for 1325 B.S. at the rate of Rs. 15-6-11 gandas and that of the other years at the rate of Rs. 18-59 in addition to cess and damages at the rate of 12 1/2 per cent.
4. Appeal was taken by the defendants-respondents to the Court of the Subordinate Judge who reversed the decision of the Munsif and dismissed the plaintiff's (now appellant's) suit with costs. The lower appellate Court came to the conclusion that the defendants were dispossessed from 4 bighas odd of land before the commencement of the settlement operations and that as the rent was a charge on every bit of the land demised the entire rent should be suspended till the defendants are restored to possession of the lands from which they have been dispossessed.
5. It is common ground that after the final publication of the Record-of-Rights proceedings under Section 105, Ben. Ten. Act, were started at the instance of the plaintiffs landlords and the Revenue Officer settled the fair rent of the land in arrears at Rs. 18-5-9, which was to be recovered from the begining of the year 1329 B. Section On the record of this suit the only part of the proceedings under Section 105 which has been produced is the decree. The decree shows that the tenants-respondents were in possession of 21 bighas 5 cottas odd land and that the fair rent assessed on the same was Rs. 18-6-9.
6. In second appeal it has been contended on behalf of the appellants that the decree in the Section 105 proceedings has the force and effect of a decree of the civil Court and it is not open to the respondents now to contend that the holding in question originally consisted of 25 bighas and not 21 bighas as mentioned in the decree under Section 105. Reference is made in this connexion to the provision of Section 107, Ben. Ten. Act.
7. On behalf of the respondents it has been contended that the decree in the Section 105 proceeding cannot bar the tenant from raising the contention of suspension of rent as that was not a matter which was the subject-matter of consideration in the Section 105 proceeding It is said by the learned vakil for the respondents that the decree was an exparte decree and the tenants-respondents did not raise the contention that they were entitled to suspension of rent by reason of dispossession by the plaintiffs from a part of the disputed holding.
8. It is consequently argued that the decree of the Revenue Officer can not operate as a bar to the raising of the issue about suspension of rent. A number of cases have been cited on both sides, but none of them, except the one to which I shall presently refer, bear directly on the question at issue.
9. The true rule applicable in cases of this kind seems to have been laid down in the decision in the case of Dharani Mohon Roy v. Asutosh Mukerji : AIR1924Cal907 . The facts of that case are briefly these; The plaintiff instituted a suit for recovery of arrears of rent and relied on the fair and equitable rent fixed by consent in a Section 105 proceeding. The defendant alleged the holding was rent free. The circumstances under which the decree in the Section 105 case was passed are stated in the judgment as follows:
It appears that the Record-of-Rights in this case was finally published on 16th December 1912. The record contained an entry to the effect that the defendants held the land without payment of rent, but that the land was liable to be assessed with rent. The landlord thereupon instituted a proceeding under Section 105, Ben. Ten Act, for assessment of fair rent. The tenants contended that they held the land rent free. Consequently the question contemplated by Section 105, Clause (a), arose, namely, whether the land was or was not liable to payment of rent. It thereupon became incumbent upon the Revenue Officer to try and decide that issue and to settle rent under Section 105 if he should hold that the land was liable to payment of rent. It is not clear what took place before the Settlement Officer. But this much becomes obvious on an examination of the Record-of-Rights, that on on 15th November 1913 rent was assessed at the rate of Rs. 3-9-0 per annum. It has been stated that this order was made by consent of parties but that is immateria for our present purpose, because under Clause (6), Section 105, where the parties agree amongst themselves by compromise or otherwise as to the amount of the fair rent, it is incumbent upon the Revenue Officer to satisfy himself that the amount agreed upon is fair and equitable and it is only if he is so satisfied that he can record the amount agreed upon as the fair and equitable rent; if he is not so Satisfied, he has to settle a. fair and equitable rent as provided in Sub-sections (4) and (5).
and the effect of the decision of the Revenue Officer was stated to be as follows:
This much is incontrovertible: that under Section 107, so long as that decree remains in force, effect must be given to it, and, if effect is given to it, there is no escape from the conclusion that the claim for rent must be decreed on that basis.
10. It seems to me, therefore, that the decree under Section 105 was conclusive between the parties in suit on two questions : (1) the area of the holding; (2) the rent of the holding. So long as the decree stands defendants are bound to pay the rent fixed by the Settlement Officer in respect of the holding of 21 bighas found in their possession by the Settlement Officer. The fact that the decree was an ex-parte one does not take away from the effect of the decree. The defendants-respondents have to thank themselves if they did not choose to appear in the Section 105 proceedings and they must now take the consequences of the ex-parte decree The decree of the Revenue Officer operates as a final decree and is binding between the parties. Whatever the position of the parties may have been at the time when the tenancy was created the effect of the Revenue Officer's decision is to define the present rights of the parties In other words the effect of the decision is to determine that the defendants are tenants of the plaintiffs-appellants in respect of 21 and odd bighas of land for which they are liable to pay Rs. 18-5-9 pies as fair and equitable rent.
11. There is no question that the defence of suspension of payment of rent would have been available to the tenants respondents, for the rental as far as can be gathered was a lump rent. It has been so held in the case of Katyayani Devi v. Udoy Kumar Das 52 I.A. 160, at p. 166, where their Lordships of the Judicial Committee of the Privy Council observed as follows:
The doctrine of suspension of payment of rent, where the tenant has not been put in possession of part of the subject leased, has been applied where the rent was a lump rent for the whole land leased treated as an indivisible subject. It has no application to a case where the stipulated rent is so much per acre or bigha.
12. But as I have stated above this defence is barred by Section 107, Ben. Ten. Act, by reason of the previous decree in the 105 case. It is to be noticed also that the tenants respondents went on paying rents at the rate of Rs. 15-6-11 gandas for several years after the dispossession and as though this circumstance does not operate as an estoppel against the defendants it shows on which side the justice of the case lies. It shows at any rate that the tenants-respondents were prepared to pay amicably in full the entire rent notwithstanding the dispossession.
13. In this view the appeal must be allowed. The decree of the lower appellate Court is set aside and that of the first Court restored. In the circumstances of the case there will be no order as to costs.
14. I entirely agree. I would add just a few words. It was strenuously contended before us that the question of the right of suspension of rent was not a matter before the Settlement Officer who was concerned entirely with assessing a fair and equitable rent for the land and it was contended that under Sections 105 and 107, Ben. Ten. Act, there was No. estoppel or res judicata upon the question of the right of the tenant to a suspension of rent. That is quite true. But the doctrine of suspension of rent depends solely upon this that the rent due is an entire sum in respect of the land demised. If, there-fore the tenant is not given occupation of the whole of the land demised, the landlord has no right to the entire rent and, unless he has a right or some equity to an apportionment, he can recover nothing on the contract. But the whole basis of the doctrine is that the rent due is one entire sum. In this case, the original tenancy is said to have been for 25 bighas 19 1/2 cottas. The land of which the tenant has had actual occupation is 21 bighas 5 cottas. The decision of the Settlement Officer was that the fair rent for 21 bighas 5 cottas was Rs. 18, this being an enhancement upon the rent of Ks. 15 for the original 25 bighas. If, therefore, this question depends upon any one proposition that proposition is this whether the tenant is able to-day and after the Settlement Officer's decision to say that he holds 25 bighas at an entire rent. It appears to me that unless we are to set aside the Settlement Officer's decision and give no effect to it at all, it must be held that in respect of the 21 bighas it has been found that the fair and equitable rent is Rs. 18 in other words, the entirety of the original rent is inconsistent with and has been destroyed by the finding of the Settlement Officer. I think, therefore, that the order proposed is a correct one.