1. This is an appeal by the defendant against the decision of the Subordinate Judge of Bogra dated 30th May 1932 reversing the decision of the Munsiff of Bogra dated 31st March 1931. The suit in which this appeal has arisen is a suit brought by the plaintiffs now respondents for recovery of arrears of rent for the years 1333 to 1336 for two jamas one of Rs. 39-14-2 and the other of Rs. 3-12-0. The defence to the suit was that the landlord had dispossessed the defendant of a portion of the holding and that the rent should be suspended. The tenancy being one indivisible with a lump rental of Rs. 45 both the Courts below have come to a concurrent conclusion that the land now in possession of one Jahiruddin was at one time a part of the defendant's tenancy and further that it was abundantly clear from the evidence that the dispossession was by the landlord and that the dispossession was a forcible dispossession seeing that there was a regular fight at the time of the dispossession and the gomastha of the landlord was wounded. The Subordinate Judge says that he agrees with the learned Munsif that the defendant was dispossessed in the year 1324 B.S. of a portion of the tenancy. The tenancy was originally admittedly of Rs. 45. A portion of the land was found to be a Diara land and for this portion a separate khatian was made and the rent of Rs. 3-12-0 was settled for this khatian under Section 104, Ben. Ten. Act. In respect of the other land there has been one khatian with a rent of Rs. 39-14-2. Both the Courts proceeded on the footing that the rent is a lump rent and not at so much per bigha. The Munsif gave effect to the defence of the defendant and dismissed the plaintiff's suit. The Subordinate Judge on appeal was of opinion that no case had been made for suspension of the entire rent but that there should be a proportionate abatement; and for that purpose he remanded the suit to the trial Court for re-admitting it under its original number and for determining what rent should be abated for the land from which the defendant had been dispossessed and then passing a decree in accordance with the observations made in the judgment.
2. Against this order of remand the present appeal has been brought by the tenant defendant. A preliminary objection has been taken to the hearing of this appeal on the ground that the order could not have been passed properly under the provisions of Order 41, Rule 23, Civil P.C., as the trial Court did not decide the suit on a preliminary point. Consequently no appeal from the order of remand lies to this Court. One decision has been cited which lays down that cases of this kind must be treated as cases in which a remand is made under the provisions of Order 41, Rule 25, Civil P.C., as if the appeal was being kept in the file of an appellate Court and the appellate Court was merely setting aside the findings of the first Court on a particular issue which had been sent down. There is no doubt a decision of Page and Graham, JJ., to that effect in Jagat Hari Saha v. Medun Bardhan 1927 Cal 642. We have examined that decision and we find that on a review of all other authorities, viz., Basumati v. Taritbasini 1920 Cal 569, Prasanna v. Baidyanath 1920 Cal 124 and Kayem v. Bahadur Khan 1925 Cal 1258 that decision is one of the two cases which takes a view different from the view taken consistently by the several Benches of this Court which have held that although the provisions of Order 41, Rule 23 might not strictly apply where, the Court of appeal has remanded the, suit to the first Court which has been asked to determine finally the suit by the order of remand, an appeal to this Court is permissible under the provisions of Order 43 Rule 1, Civil P.C. We therefore do not think that there is any substance in the preliminary objection which must be overruled.
3. The real question in controversy before us is as to whether, when the rental is a lump rental as in the present case and the tenants have been dispossessed and forcibly dispossessed from a part of the demised premises-in this case about one-tenth of the demised area-there should be a total suspension of rent or a proportionate abatement. The appellant contends upon the authorities that there should be a total suspension. On the contrary the learned advocate for the respondents, supporting the judgment of the Subordinate Judge contend that there should be a proportionate abatement and not total suspension. The question as to whether in the case of a lump rental where there has been dispossession from a part of the demised premises there should be a total suspension of rent did come before their Lordships of the Judicial Committee of the Privy Council in Katyayani Debi v. Udoy Kumar Das 1925 PC 97. Their Lordships observed thus:
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 when the stipulated rent is so much per acre or bigha.
4. Reliance has been placed on behalf of the appellant in support of the contention that there should be a total suspension of rent not only on this decision, but on several decisions of this Court which has interpreted the decision of their Lordships of the Judicial Committee to mean that in the case of lump rental where there is a dispossession of a part of the demised premises there should be a total suspension of rent until the tenant is restored to possession. To some of these decisions I was a party. Reference may be made to the case of Mahim Chandra v. Karamali 1929 Cal 516 which is a decision of mine sitting singly. In that decision the view contended for by the appellant was taken. There was an appeal in this case under Section 15, Letters Patent, from my decision and that appeal was dismissed by C.C. Ghose and Mallik, JJ., summarily. The next decision is that of Jack, J., and I was also a party to that decision. This is the decision in Abhoya Charan v. Hem Chandra 1929 Cal 568 where cases both of the English and Indian Courts from the very earliest times were reviewed and it was pointed out that all the earlier cases with the exception of a single case to which reference has been made in the judgment of the appellate Court in the present case took the view that in the case of a tenancy with lump rental where there has been dispossession by a landlord of tenant from a part of a demised premises there should not be a proportionate abatement of rent but the entire rent should be suspended. The reasons for this view are given with gratefulness in my decision in Abhoya Charan v. Hem Chandra 1929 Cal 568 and it is not necessary to reproduce these reasons here again. It is to be noticed that in Susil Kumar v. Rajani Kanta 1927 Cal 787 B.B. Ghose and Roy, JJ., expressed the opinion that the observations of their Lordships of the Judicial Committee in Katyayani Debi v. Udoy Kumar Das 1925 P.C. 97 were no authority for the proposition that there should be any apportionment in every case of dispossession by the landlord of the tenant from a part of the demised premises where the rent was a lump rental. It was further pointed out in Abhoya Charan v. Hem Chandra 1929 Cal 568 that it is difficult to read the decision of the Judicial Committee in the same way as the learned Judges in Susil Kumar v. Rajani Kanta 1927 Cal 787 seem to have read it. The true rule is that which was laid down by the Sir George Claus Rankin, C.J., in Sajjad Ahmad v. Trailakhya Nath 1928 Cal 479 referred to in Abhoya Charan v. Hem Chandra 1929 Cal 568
that the doctrine of suspension of rent depends solely on this that the rent due is an entire sum in respect of the land demised. If therefore 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.
5. That there is no difference between the English and the Indian law on the subject was pointed out in the earlier decisions of this Court to which reference has been made in my decision in Abhoya Charan v. Hem Chandra 1929 Cal 568. B.B. Ghose, J., took a different view. But the observations of the learned Judge in that case were of the nature of obiter dictum. Apparently the view taken in Abhoya Charan v. Hem Chandra 1929 Cal 568is the view contended by the appellant. The decision in Abhoya Charan v. Hem Chandra 1929 Cal 568 has been followed by Suhrawardy and Graham, JJ., in Krishna Chandra v. Surendra Nath 1932 Cal 385. The learned Judges agreeing with the view taken in Abhoya Charan v. Hem Chandra 1929 Cal 568 already referred to and dissenting from the view taken by B.B. Ghose, J., in Susil Kumar v. Rajani Kanta 1927 Cal 787 observed
that 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 authorities commencing almost from Gopanund Jha v. Govinda Persad (1869) 12 WR 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 is 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 lease by a third party from a portion of the lease-hold or otherwise acts bona fide, he is entitled to some relief.
6. The case before us being a case of deliberate and forcible expulsion of a tenant from a part of the demised premises no question of equity to an apportionment can possibly arise, and the tenant is entitled to entire suspension of rent till he is restored to possession of the dispossessed portion.
7. The Subordinate Judge however inclines to the view that a later decision of their Lordships of the Judicial Committee of the Privy Council in Jogesh Chandra v. Emdad Meah 1932 PC 28 has modified considerably the doctrine of total suspension of rent in case of dispossession by landlord from a part of the tenancy with a lump rent. It becomes necessary therefore to examine closely and critically the decision of their Lordships of the Judicial Committee of the Privy Council in this recent case. The facts, when examined, show that it was not a case of dispossession of the tenant by the landlord at all but it was a case of landlord not being able to put the, tenant in possession of a part of the tenancy, by reason of title paramount in a third person. Briefly stated the position was this: There was a tenancy of one Homer Ali under the appellant Jogesh Chandra Roy.
8. In 1910 the appellant before their Lordships instituted a, suit for possession of Jote No. 83 against Hamer Ali's widow and the respondent before their Lordships Emdad Ali obtained a decree in his favour in 1912. He executed the decree in 1913. In 1916 the appellant brought a similar suit for possession of Jote No. 98 against not only the widow and the respondent before their Lordships, Emdad, but also against Hamer Ali's four daughters as well. In October 1917, this suit was compromised as between the appellant before their Lordships and Hamer Ali's widow and the respondent, the daughters being first excluded from the category of defendants on the petition of the appellant before their Lordships, Jogesh Chandra Roy a solenama was then executed by the appellant, the widow and the respondent under which out of the 20 drones odd of which the holding consisted, the widow and the respondent Emdad were to hold 11 drones odd under the appellant at a rent thereby fixed and the appellant Jogesh Chandra Boy was to get Khas possession of the balance of 8 drones odd. The respondent Emdad further agreed to pay a sum of Rs. 1,400 in respect of the appellant's costs and mesne profits by instalments and executed a mortgage therefor. It was a part of the settlement of that suit, which related to Suit No. 98, that the respondent Emdad should execute the kabuliyat. relative to Jote No. 83, dated 11th October 1917, which formed the basis of the suit in which the appeal before their Lordships had arisen. By that kabuliyat the respondent Emdad took a bekaemi or non-permanent settlement as a yearly tenant of 10 drones odd land out of 14 drones odd at a certain yearly rental. In January 1920, the respondent's sisters, that is the daughters of Hamer Ali brought a suit against Jogesh the landlord and Emdad for a declaration of their right and confirmation of their possession to the extent of their share as co-heirs of Hamer Ali in Jote Nos 83. That suit was ultimately decreed and it was held that the sisters' share which amounted to 9 as 4 gds. in Jote No. 83 was not affected by the previous decrees and sales.
9. The result was that Jogesh the landlord had failed to put the respondent Emdad in possession of the entire subject which was the land covered by the kabuliyat of 11th October 1917. The Courts in India dismissed the suit of Jogesh Chandra Roy, but before their Lordships of the Judicial Committee a plea was taken for the first time that the suit should not have been dismissed in its entirety, but a decree for a proportionately abated rent should have been given it being taken into account that the respondent Emdad's sisters are entitled to 9 as. 4 p. share under the decree of 1928. This is not a case like the case before their Lordships of the Judicial Committee as the latter case was not a case of forcible dispossession by the landlord from a portion of the tenancy in which the tenant had already been put into possession. This case before their Lordships was a case where the landlord could not put the lessee in possession of a portion of the demised premises because the possession was not available to him by reason of the title to a certain share of the tenancy being not in the plaintiff landlord, but in some of the heirs of the original tenant, whose rights had not been extinguished by the sale by the landlord. The case we are considering is a very different case. The title of the landlord and his power to give possession to the tenant in the present case was undoubted. After granting a lease to the defendant in the present case the plaintiff put the defendant in possession and included a portion of the tenancy in a subsequent lease to one Jahiruddin and on the strength of that subsequent lease and with the assistance of the landlord Jahiruddin dispossessed the present defendant from a portion of the demised premises.
10. The case before the Privy Council was a case when the landlord by reason of a paramount title to a portion of the demised premises in the original tenancy could not get possession of a certain share of the said premises and could not put the tenant with whom he had leased the Jote No. 83 in 11th October 1917, in possession of that share. This decision in our view does not affect the principle laid down by their Lordships of the Judicial Committee in Katyayani Debi v. Udoy Kumar Das 1925 P.C. 97 referred to above. A careful examination of the facts to which we have referred shows that the case of Jogesh Chandra v. Emdad Meah 1932 PC 28 relates to a very different state of facts and circumstances which cannot affect the previous decision in Katyayani's case. And we are strengthened in our conclusion by the following further examination of the case. In support of the contention that the landlord Jogesh Chandra Roy should have been given a decree for proportionate part of rent Mr. Pringle who was appearing for the landlord appellant before the Privy Council referred to Imambundi v. Kamaleswar (1894) 21 Cal 1005 which was a case of the landlord not putting the lessee in possession by reason of eviction by title paramount and Mr. Pringle's contention succeeded. In Imambundi v. Kamaleswar (1894) 21 Cal 1005 their Lordships make the following observations which will make it clear that they were not dealing with a case of dispossession by the landlord after the tenant was put into possession, but was dealing with a case where the tenant could not obtain possession by reason of the landlord being evicted by title paramount. Their Lordships say: As Imambundi did not prove that she entered into possession under the leases and was then dispossessed there was not an eviction in the proper sense of the word. But when Imambundi was alleged to bring a suit to obtain possession and succeeded in obtaining a part of what was granted in mokarari and was precluded by the result of the suit from having possession of a substantial and a longer part she was in a similar position to having been evicted from that part and there is same equity to an apportionment as in the case of eviction. Here the eviction was not by landlord, but by title paramount. In such a case there must be proportionate abatement. For as Foa points out in his Law of Landlord and Tenant, Edn. 6, p. 195, where the eviction by title paramount is only from a part of the demised premises the effect (unlike that in the case of eviction by lessor himself) is not to suspend the whole rent, but to render the tenant liable to have it apportioned. Jogesh Chandra v. Emdad Meah 1932 PC 28 cannot govern the case of forcible dispossession by the landlord where the tenant having been put into possession has been forcibly dispossessed from a part of demised premises after this. This Court almost unanimously with the single exception of the decision of B.B. Ghose, J., held in favour of the contention raised by the appellant.
11. The result therefore is that this appeal must be allowed. The judgment and decree of the Subordinate Judge must be set aside and those of the Munsif restored with costs in all Courts. It remains to notice the case which has been cited on behalf of the respondents. This is a decision of my learned brother Mukerji, J., in Sakhisona Dasi v. Pran Krishna Das 1933 Cal 566 and requires serious consideration. The learned Judge observed this:
My view is that the mere fact that the tenancy is governed by one lease and so in law may be regarded as one tenure is not enough; what has to be seen is whether, in fact, the parcels are such that deprivation from one necessarily interferes with the due enjoyment of the others.
12. Previous to this remark the learned Judge referred to the decision of Page, J., in Dhirendra Nath Roy v. Bhabatarini Debi. 1929 Cal 395 which took the view that there should be total suspension in case of dispossession from part. Mookerji, J., refers to the following observation of Page, J.:
Was it one indivisible tenancy and was there interference by the landlord with the due enjoyment of the previous or any part of them?
13. I do not think however in order to decide the present case one need consider whether the tenancy consists of separate mouzas, that is properties rented separately or whether the tenancy in effect in law is indivisible or divisible. Towards the end of the judgment Mukherji, J., refers with approval to the following observation of Page, J., as he then was:
It is not possible for the landlords to assert that any portion of the rent is payable in respect of any portion of the premises for in law every pice of rent is payable out of every portion of the premises demised.
14. Applying this principle to the present case there is no question of the tenancy consisting of several parcels of land separately assessed to rent and consequently total suspension must be the result. We are therefore of opinion that this decision does not help the respondent. On the other hand the remark just quoted goes against him.
15. I agree.