1. These three suits have been heard together as their decision depends on the same facts. The main suit has been brought by Nishi Kanta Sarkar (to whom I shall refer as the plaintiff) against Sir David Ezra and Mr. Tylor Bryan, defendants 1 and 2, for damages for encroachment, for suspension and abatement of rent, and for a declaration that the plaintiff is entitled to the joint use of a common passage. Sir David Ezra is the lessor, and Sarkar and Bryan were lessees under him of Nos. 10 and 9, Chowringhee, respectively. In the other two suits Sir David Ezra sues Mr Sarkar for arrears of rent. In the main suit the plaintiff claims a right of user over a passage between his premises No. 10 and the premises No. 9, Chowringhee. It is common ground that a platform was built over that passage in July 1933, and was in position until July 1934. The plaintiff contends that it remained for a further two months before it was demolished. Both the defendants accept responsibility for the erection of the platform, and the plaintiff assesses the damages that he has suffered at Rupees 1,32,000. He also alleges that the platform encroached upon his premises and that he therefore was entitled to a suspension or abatement of rent from defendant 1. The plaintiff's lease is dated 12th December 1930. It provides that the plaintiff should hold the promises No. 10, Chowringhee Road, for a term of 10 years from 1st March 1931, on a monthly rent of Rs. 1,000, with an increase of Rs. 30 per month every three years; additions and alterations were to be made by the lessee at a cost of Rs. 12,000, to which the lessor was to contribute Rs. 4,000. The covenant around which the present dispute centres is 2 C, and is in the following terms:
And the lessor will allow the lessee attachment and use of the north wall of premises No. 11, Chowringhee Read, for the purpose of constructions detailed in Schedule B hereof and will also allow or permit the lessee uninterrupted joint use with the occupiers of No. 9, Chowringhee Road, the entire 4 feet (four feet) passage in width along the south wall of the said No. 9, Chowringhee Road from the date of these resents, provided the lessee obtains the consent of the tenants concerned.
2. No. 10, Chowringhee is to the south of No. 9, Chowringhee, a road which runs north and south and to the west of both premises. There is some dispute as to the width of the passage described in the lease as '4 feet wide,' but it is common ground that a space from 4 to 5 feet wide appertained to No. 9, Chowringhee, on its southern boundary which was marked by a low boundary wall. Defendant 2 was in occupation of No. 9, Chowringhee, under a lease from defendant 1 for a term of five years from 1st July 1928. The plaintiff on obtaining his lease immediately started negotiations with defendant 2, so as to obtain his consent to use the passage as required by the terms of the lease. From the correspondence it is apparent that the plaintiff considered this consent a mere matter of form, while defendant 2 was doubtful of its effect on the amenities of his premises and was unwilling to give his consent without receiving some advantage in return. In. April 1931 defendant 2 went on leave out of India and the day before his departure, on 22nd April, certain terms were put on paper and signed by the plaintiff and defendant 2. Briefly these terms provided that the parties should have joint use of the passage described as '5 feet wide' and the plaintiff should, if called upon, take a sub-lease of a portion of the premises No. 9, Chowringhee.
3. One of the main questions in the suit is whether this document constituted a binding agreement between the parties, and I shall refer to its terms in detail hereafter. During the absence of defendant 2 his attorney called upon the plaintiff to take up the lease in terms of the agreement of 26th April. The plaintiff raised objections, and on 17th June 1932. defendant 2 brought a suit against the plaintiff for specific performance. In January 1933 that suit was withdrawn and stood dismissed with costs. On 22nd July 1933, the defendants erected a platform, about 5 feet wide and 50 feet long adjoining the south wall of No. 9, Chow ringhee. This platform was removed a year or 14 months later. The plaintiff contends that this platform obstructed the passage to No. 10, Chowringhee, caused an excess of water to collect, and drove away his tenants. On 14th May 1934, he filed this suit for damages which he assessed at Rs. 1,32,000, and claiming that he was entitled to suspension of rent, he ceased payment, but without prejudice deposited with his attorneys a sum of Rs. 8,000. On 4th July 1934, Sir David Ezra brought a suit for arrears of rent and municipal taxes, and on 25th June 1935 he sued for further arrears of rent amounting to Rs. 13,680. It is agreed by both parties that if the Court holds that the plaintiff is entitled to damages, the amount of such damages must be referred, but evidence has been given by the plaintiff and his tenants in support of the plaintiff's case that damage was in fact incurred. The following issues have been framed:
4. 1. Is the plaintiff entitled to any rights in or over the passage referred to in paraSection 2 and 5 of the plaint? 2. Did the defendant Bailey Tyler Bryan ever give his consent to the plaintiff having joint use of the said passage or agree to the plaintiff having such user? (a) If yea, was such consent conditional? (b) And if yea was such condition performed by the plaintiff? 3. What are the dimensions and what was the nature of the platform referred to in para. 8 of the plaint? 4. Was the said platform an encroachment or trespass on any portion of the plaintiff's demised lands? 5a Did the erection of the said platform wrongly deprive the plaintiff of the peaceful use and enjoyment of the demised lands or any portion thereof? 5b Did the said platform wrongfully deprive the plaintiff of the peaceful use and enjoyment of the passage? 6. Has the plaintiff suffered any damage as a consequence of such wrongful act? To what damages is the plaintiff entitled? 7. Is the plaintiff entitled to suspension of rent? 8. Is the sum of Rs. 2,860 claimed as arrears of rent in Suit No. 1196 of 1934 or any and what part thereof due and payable to the plaintiff therein? 9. Is the sum of Rs. 13,680 claimed as arrears of rent in Suit No. 1193 of 1935 or any and what part thereof due and payable to the plaintiff therein? 10. What sums, if any, are due and payable to the plaintiff on the said rent suits in respect of the excess rates claimed therein?
5. Extra issue:--Did the plaintiff erect shop-rooms at the Chowringhee Road side of No. 10, Chowringhee Road, on the assurance of defendant 1, that a clear 10 ft. passage would remain between No. 9, Chowringhee, and the north extremity of the new shoprooms? I have no hesitation in finding that the platform was erected on the 22nd July 1933, and demolished on the 20th July 1934. (The judgment after deciding issues 1 in the negative, 2(a), in the positive and 2(b), in the negative, 3, width 5 ft. 4, in the negative, 5 (a), and (b) in the negative and after holding that it was not necessary to decide issue 6 proceeded.) On the 7th issue the plaintiff contends that there has been an encroachment which amounts to an eviction, and, if the rent be one and indivisible, as it is here, justifies suspension of rent. The defendants contend that this plea cannot be raised because no eviction has been specifically pleaded. This plea cannot in my opinion be upheld. Pleadings in India cannot be regarded with the same meticulous care with which they were scrutinised in the English Courts, and in my view the plaint alleges encroachment and interference with sufficient particularity to justify the raising of this issue. The principles which have to be considered in deciding what constitutes eviction so as to justify suspension were laid down in England so long ago as 1855, in the well-known case of Upton v. Townend (1855) 17 C B 30. Jervis, C. J., after dealing with the derivation of the word 'eviction' says at p. 64 of the report:
It is now well settled, that, if the tenant loses the benefit of the enjoyment of any portion of the demised premises, by the act of the landlord, the rent is thereby suspended. The term 'eviction' is now popularly applied to every class of expulsion or amotion. Getting rid thus of the old notion of eviction, I think it may now be taken to mean this: not a mere trespass and nothing more, but something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises.
6. Williams, J., at p. 68 says:
There clearly are some acts of interference by the landlord with the tenant's enjoyment of the premises which do not amount to an eviction, but which may be either mere acts of trespass or eviction according to the intention with which they are done. If those acts amount to a clear indication of intention on the landlord's part that the tenant shall no longer continue to hold the premises, they would constitute an eviction.
7. And Crowder, J., says much the same thing at p. 71.
Although, therefore, I agree that it is not every act of trespass by a landlord that will amount to an eviction, I think in both cases the tenant has been substantially and permanently deprived of the subject matter of the demise, so as to entitle him to say that he has not had the occupation of that which he was entitled to.
8. And Willes, J. at p. 75:
In both cases, therefore, as it seems to me, the tenant was, by an act of the landlord, which was intended to be, and was, of a permanent character, deprived of the perfect and convenient use of the thing demised.
9. The question of fact which therefore has to be determined is: Did the landlord by the erection of this platform do something of a grave and permanent character with the intention of permanently depriving the plaintiff of a portion of the subject matter of the demise? Neither of the defendants, both of whom accept responsibility for the erection of the platform, has given evidence, preferring to rely on the correspondence and other documents. For the plaintiff, stress is laid on the fact that no explanation has been given as to why the platform was erected. It is not uncommon to erect a barrier to protect an easement and it is probable that such was the purpose of the platform, for it must be remembered that the plaintiff had been using this passage for a considerable period though, as I have held, he had no legal right to do so. On my findings the platform did at any rate in one portion encroach to the extent of a few inches on to the plaintiff's premises and Mr. Section C. Bose for the plaintiff contends that an encroachment however small may constitute an eviction. In my view there was in fact no eviction, the defendants were evidently building the platform so far as possible along the southern boundary of No. 9. The platform was erected in a day and I accept the defendants' evidence that it was demolished in a single morning, in July 1934, after it had been in position for one year. There is nothing to show that it was intended to be permanent, and in my opinion the encroachment was so slight that it amounted to a mere trespass. Its character was neither permanent nor grave. Secondly, I can find no evidence of an intention to deprive the plaintiff of the enjoyment of the demised premises. I find accordingly on issue 7 that there was no eviction so as to justify suspension of rent.
10. I have already commented on the unsatisfactory nature of the plaintiff's evidence. He seldom gave a direct answer and in the witness box he persisted in charging the defendants with colluding so that the landlord might regain his property with the improvements effected by the plaintiff. There is not the slightest justification for any such charge. The plaintiff's own attitude is apparent from the correspondence. He started a scheme of speculative building and his first disappointment came when he was refused sanction to install a petrol pump. Then to his dismay he found that Mr. Dryan would not convey his passage rights without consideration. Threats were of no avail and eventually he found that to gain his object he must take a lease of a portion of No. 9. He admits that he did not want to take up the lease if he could avoid it. The speculation was proving a failure, as appears from the, undated letter to Mr. Bryan in England, as throughout the correspondence we find him making claims to which admittedly he is not entitled. When first the platform is erected he consents to put up with it, if he can get a remission of rent, and finally he claims suspension, and ceases to pay rent at all. The attitude which Mr. Sarkar himself has adopted is possibly responsible for his charges of bad faith against his landlord and neighbour. Those charges are in my view quite unfounded. Suit No. 924 of 1934 is dismissed. The plaintiff must pay the costs of both the defendants.