1. The plaintiff is the appellant in this appeal. The appeal has arisen out of a suit which the plaintiff instituted for recovery of arrears of rent with cesses and damages for the years 1331 to 1334 in respect of certain lands and the claim was laid at an annual rental of Rs. 82 odd in plaintiff's eight annas share. Amongst the pleas that were taken on behalf of the defendants was a plea of suspension of rent on the ground of dispossession. The land which forms the subject matter of this suit will be found depicted in the settlement map as being bounded on the north by a khal and on the east by a river. The controversy between the parties as regards dispossession relates to two plots marked 602 and 603 on that map. These two plots also, as would appear on the map, were bounded on the north by the khal and on the east by the river. The defendant's case is that they have been dispossessed by the plaintiff in respect of these two plots, and inasmuch as the plots formed part of the original tenancy which was created by a kabuliyat Ex. A, so far back as in the year 1876, the plaintiff is not entitled to recover any rent from them.
2. The Munsif found that the said two plots were not covered by the kabuliyat. He accordingly found that there was no evidence to satisfy him that the plaintiff had dispossessed the defendants from any part of the rent lands. It seems that in the course of argument before the trial Court it was urged on behalf of the defendants that as these two plots had accreted to the rent lands, the defendants were entitled to possess them treating them as accretions, but that the plaintiff had prevented the defendants from doing so and that therefore there should be an order for suspension of rent. This argument also was overruled by the Munsif because he was not satisfied that the defendants ever attempted to possess the lands after they had accreted and further more because the defendants had been paying rent without protest for a long time ever after the lands had accreted. In this view of the facts, the Munsif held that the rent claimed in the suit should not be suspended. He then dealt with the question as regards the amount of rent that was to be decreed and relying upon the terms in the kabuliyat under which the contract had been created between the parties and which were to the effect that in case of increase or decrease in area of the lands covered by the kabuliyat as would be found on measurement by a particular standard the defendants would be liable to pay increased rent or would be entitled to abatement of rent and giving effect to these terms, the Munsif held that on the quantity of lands which would be found on such calculation, rupees 154-8-0 would be the rent for the 16 annas share of the lands and accordingly the rent in the plaintiff's eight annas share would be Rs. 77-4-0. From this, the Munsif deducted certain charges which under the terms of the kabuliyat the defendants would be entitled to and he came to the conclusion that the suit should be decreed at the rate of Rs. 57-15-0 per year as rent together with cesses and damages. That was the decree which the Munsif made.
3. From this decision, an appeal was taken by both the parties. In the plaintiff's appeal, the question raised was as regards the rate of rent that had been assessed for the lands. In the appeal which the defendants preferred they assailed the conclusion of the Munsif that there should be no suspension of rent. The Subordinate Judge allowed the defendants' appeal and dismissed the plaintiff's appeal as well although ha was not prepared to record any conclusion upon the question that was raised therein. Indeed, it was not necessary for him to deal with the latter appeal because he came to the conclusion that the entire rent should be suspended and that this was not a case in which the ends of justice would be met by ordering a reduction or abatement of rent in respect of the portion of which the defendants had been dispossessed. The present appeal, as already stated, has been preferred by the plaintiff.
4. The decision of the learned Subordinate Judge, which has been placed before me, does not seem to me to be one which can on any ground be supported. All that he has been able to find is that there is no satisfactory evidence that the two plots of land in respect of which dispossession was complained were char lands which had formed by the silting up of the khal or of the river by which they were bounded on the north and the east respectively. What the learned Judge had to find in the first place, if he was to give effect to the plea of suspension on the ground of dispossession was that the two plots of land from which the defendants said they had been dispossessed were lands which at one time or other formed part of the original tenancy. It is plain that the plea is a plea which the defendants set up and that in order that the defendants may be able to get the benefit of it, it is necessary that they should establish that these two plots of land formed part of the said tenancy. The learned Judge has not approached the case from that point of view. He has compared the boundaries of the kabuliyat with the boundaries of the lands in respect of which dispossession was complained of and on a comparison of the boundaries he has found that the northern boundary is Haldar Khali khal and the eastern boundary is the Jamna river and from that fact alone he has held that prima facie the two plots of land appertained to the defendants' jama which extended right up to Haldar Khali khal on the north and the river on the east. I am unable to appreciate how upon these materials the learned Judge could come to such a conclusion. The boundaries being on the north a khal and on the east a river they would apply equally well to a position in which the two plots were not in existence just as well as if those plots were in existence at the time when the kabuliyat was executed.
5. The first element mentioned above, that has got to be established in order to make out a case of suspension of rent, in my opinion, has not been established in this case. Then there is the question as to whether there has been such a dispossession as would entitle the defendants to claim suspension of rent. It is not any and every act of dispossession by a landlord which ought to be penalized by the enforcement of this principle. A wrongful or tortuous act of dispossession is necessary in order that the principle may be applied. There is no finding going anywhere near such a position. In these circumstances, it is impossible to uphold the decision of the learned Subordinate Judge which seems to have proceeded on the ground that as soon as it is found that the portion of land adjoining a certain tenancy is in the possession of the plaintiff landlord and the plaintiff landlord is not able to show that it was outside the tenancy originallycreated, the defendants would be able to claim suspension of rent and that their prayer in that respect should be granted.
6. The next question that arises is as to whether the proper course in this case to adopt would be to order a fresh investigation with regard to the facts of the case. It is quite clear that if a fresh investigation has to be made it will have to be made upon two points : Firstly, the point which arose upon the plaintiff's appeal to the lower appellate Court and which has not been dealt with by the Subordinate Judge, namely, the point relating to the question of rate of rent; and secondly, the question which arose upon the defendants' plea, namely, the plea of suspension of rent, the point being as to whether in the first place these two plots of lands formed part of the original tenancy created by the kabuliyat Ex. A, and nextly, whether there has been any wrongful or tortuous act of dispossession on the part of the plaintiff, such as would disentitle him to recover rent so long as he did not restore possession to the defendants. The plaintiff says that he is not particularly anxious to have the rate of rent agitated in the present suit if the question as regards the rate of rent be left open. The defendants on the other hand have pressed for a remand. I do not think that this is a case in which the present litigation should be protracted any further.
7. In this view of the matter, I am of opinion that the proper order to make in this case would be to allow the appeal, to set aside the decision of the Subordinate Judge and to restore that of the Munsif as a decree for rent in respect of the years 1331 to 1384 and for those years only. The question as regards the rate of rent will be left open and the plaintiff will be at liberty to agitate the same question in a future litigation in which he considers it necessary to raise. The defendants also will be entitled to raise the question of suspension of rent should they be so advised in any suit for rent that may be instituted against them for any subsequent period. With this reservation, the decree of the trial Court is restored and with costs in this Court and in the Court of appeal below to the extent of the plaintiff's success in this litigation.