1. In this case the plaintiff sued for rent for the years 1323 to 1326 for three kanis of land at the rate of Rs. 13 per kani and also prayed for additional rent for additional area according to the terms of a lease. The defendants put up various defences alleging that they held all the lands within certain boundaries; that there was no excess land; that they had been dispossessed of some of their lands and that they had paid rent for 1323 and part of 1324. The Munsif dismissed the suit holding that there had been partial dispossession and holding too that the rent for 1323 and part of 1324 had been paid. In appeal the Subordinate Judge has given the plaintiff a decree to this extent that he has remanded the case to the lower Court to ascertain by actual measurement the exact extent of land held by the respondents within the boundaries given in the kabuliyat and to assess the excess land at Rs. 13 per kani. He does not appear to have disturbed the finding that the rent for 1323 and part of 1324 had been paid though in the ordinary portion of his judgment he does not refer to it. Now it appears that the lands were described as being within certain boundaries excepting a tank and its bank and being of about three kanis lot out to the defendants' predecessor in 1310. In the following year another one kani and 13 gandas was let out to one Aminulla. There appears to have been no litigation in the matter. Both defendants and Aminulla lived in the same bari. Now the defendants put up a claim that they had been wrongfully dispossessed after having lived amicably with their dispossessor for 20 years.
2. The difficulty, however, in our way in dealing with this case has been avoided owing to the fact that since the order of remand for an enquiry by a civil Court commissioner was made, that enquiry has been held and we are informed that in that enquiry it has transpired that the present defendants were in actual exclusive possession of a little over three kanis and that 16 gandas of land are held jointly by Aminulla and the defendants, that certain area is held by the plaintiff and that a certain area is held exclusively by Aminulla. So far as the rent is concerned the kabuliyat stated that any excess area had to be paid for at Rs. 13 per kani and that for any decrease of area there should be reduction of rent. The defendants are, therefore, clearly liable for rent for three kanis and in future for a little more, as found by the commissioner. The further discussion as to whether the lease of the defendants included all the lands within the boundaries or not, specially in view of the terms of the commissioner's report, appears to us to be purely academic.
3. As to suspension of rent for loss of land whether there should be a permanent or proportionate suspension in such a case as this has now been sot at rest by the decision of their Lordships of the Judicial Committee in Kalyayani Debi v. Udoy Kumar Das . The doctrine of suspension of the 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 sum for the whole land leased treated as an indivisible subject. It has no application to the case where the stipulated rent is so much per aero or bigha.
4. We would add, however, that the Additional Subordinate Judge appears to have overlooked the fact that the rent for 1323 and the rent of Rs. 10-8-0 for 1324 have been paid.
5. The order, therefore, we propose to pass in this case is that the appeal succeeds to this extent, namely, that the plaintiff will got a decree for rent at Rs. 39 a year for the years 1324 to 1326 less Rs. 10-8-0 already paid for 1326, and the plaintiff will also be entitled to a decree for any small additional area found exclusively in the possession of the present defendants. We do not propose to pass any order as to the land held jointly, and as to the land held exclusively by Aminulla no order is necessary as the defendants have still more than three kanis left in their exclusive possession.
6. The order of costs in the lower Courts will stand. Each party will bear its own costs in this Court.