1. The plaintiff instituted this suit for recovery of rent for the years 1330 to 1333 B.S. for a holding, which, according to her, consisted of 3 bighas 15 cottas of land and bore a rental of Rs. 90-4-0 per year. The defendant's case was that upwards of 100 years ago their predecessors came to have a holding under the predecessors of the plaintiff which originally consisted of 4 bighas 17 cottas of land with a rental of Rs. 72-12-0; that by a measurement subsequently made it was found to consist of 4 bighas 15 cottas 8 chitaks and its rental was accordingly reduced to Rs. 71-11-0; that by subsequent settlements taken of fresh lands from time to time, it eventually became a jama of 6 bighas 3 cottas of land with a rental of Rs. 147-8-0. Their case was that the plaintiff had forcibly dispossessed them of 2 bighas 8 cottas out of the lands and settled the same with a third party. Their case further was that when they protested, the plaintiff promised to give them 1 bigha 3 cottas mere land and grant them a permanent lease of 5 bighas 1 cotta of land on a rental of Rs. 120, but that the plaintiff never carried out her promise and on the other hand placed all sorts of obstacles in their enjoyment of the rest of the lands and so they are entitled to claim suspension of rent. The plaintiff's allegation on the other hand was that the 2 bighas 8 cottas of land was taken from the defendants with their consent and on their agreeing to pay a reduced rental of Rs. 90-4-0, and she denied having interfered with the defendants' peaceful enjoyment of the rest of the lands. The Courts below have dismissed the suit. The trial Court observed that it was
unable to hold that any relationship of landlord and tenant existed between the parties in respect of a jama of Rs. 90-4-0.
2. The wording of this finding is not quite happy but what is meant is clear: the Court held that the plaintiff's case that there was consent to the portion being taken out and a rental of Rs. 90-4-0 being agreed upon was not established. The Subordinate Judge also has found that the plaintiff's case that the defendants willingly gave 2 bighas 8 cottas and agreed to pay a rental of Rs. 90-4-0 was not proved. He has come to no definite finding on the defendant's case that after the dispossession there was a promise by the plaintiff to give them 1 bigha 6 cottas more land and to grant them a permanent lease of 5 bighas 1 cotta at a rental of Rs. 120, but has observed thus:
It seems to me that the clamorous of the defendants against such aggression were alleged by some golden prospects, held out for compensation and the plaintiff is powerful' enough not only to take away the lands but also to forget her promise of compensation.
3. He has also recorded another finding, but that, in my opinion, is not a finding on which his decision is based, that the plaintiff has put some obstacles in the way of the defendants' peaceful possession by cutting off water supply for irrigation, and I accordingly do not propose to place any reliance on it. I have very carefully scrutinized the finding and have come to the conclusion that it amounts, on the whole, to a finding of wrongful and forcible dispossession. The question to be considered is whether on this finding a decree suspending the entire rent is justified. The question has been considered in a very large number of cases and it must be conceded that there is a considerable conflict in the views that have from time to time been taken. It is nevertheless, in my opinion, possible to gather from the decisions, certain principles, which may, without difficulty, be held to be sufficient for the disposal of the present case I propose to refer to only such of the decisions as have a direct bearing on the case before me. The doctrine of suspension of rent, as I understand it, means that the landlord may be penalized for a wilfully wrongful or tortuous act of his own by which he prevents a tenant from being in quiet and peaceful enjoyment of the premises demised to the latter.
4. The doctrine is a relic of feudal times and the reasons for the rule have been variously stated to be that the landlord ought not be encouraged to injure his tenant whom by the policy of the feudal law he is bound to protect, that he cannot be permitted to apportion his own wrong, and that because by the demise every part of the demise is equally chargeable with the whole rent the lessor cannot by his own act discharge any part from the burden during the continuance of the contract. These reasons have been pointed out by Mookerjee, J., in an elaborate judgment in which he has also shown that the rule has been adopted in England though not without considerable divergence of opinion: see Rai Charan Shar Majumdar v. Administrator of Bengal (1909) 36 Cal 856. In a very early decision of this Court, Gopanund Jha v. Gobind Pershad (1869) 12 WR 109 Sir Barnes Peacock, C.J., quoted this doctrine from Bacon but; had no occasion to apply it in the case before him because in that case the dispossession was not by the lessor but by a title paramount, and such dispossession justified a decree for apportionment. A number of decisions bearing upon this question are referred to in the judgment of this Court in the case of Dhanput Singh v. Mahomed Kazim Ispahani (1897) 24 Cal 296, in which on a consideration of them and of certain English authorities it was laid down that where the act of landlord is not a mere trespass but something of a graver character interfering substantially with the enjoyment, by the tenant, of the demised property, the tenant is entitled to a suspension of rent even though there may not be actual eviction, and that even if there be such interference committed in respect of a portion of the property there should be no apportionment of rent where the whole rent is equally chargeable upon every part of the land demised, but if the interference be in respect of only a certain portion of the demised property the rent for which is separately assessed there should be apportionment.
5. In Harro Kumari v. Purna Chandra (1901) 28 Cal 188 suspension was allowed in a case in which the dispossession was in respect of a part of a tenure the rent of which was reserved at a certain rate per bigha: and the reservation laid down in Dhanput Singh's case (1897) 24 Cal 296 was explained on the ground that in that case, though the patni was granted as a single tenure, it was composed of several villages the rent of each village being separately assessed. This last mentioned decision was followed in Surendra Nath Guha v. Kali Kanta (1910) 14 CWN 227n and Chandra Kant a Das v. Ramanath Burman (1910) 6 IC 478 in both of which cases the rental was at a rate per bigha. In the meantime in the case of Annada Prasad v. Mathuranath (1909) 2 IC 123 one of the learned Judges observed that it might be questioned how far the technicalities of English law should be allowed to affect the relations of landlord and tenant in this country, but held on the facts that the rule of suspension was inapplicable to the case before them because:
all that could be said was that the plaintiff did not give the defendant possession of a quantity of lands.
6. In the case of Purna Chandra v. Rasik Chandra (1911) 9 IC 568, suspension of rent was ordered, it being said that the principle was supported by a long series of decisions which had been recognized as good law for 40 years and that the rule was based upon weighty reasons and was defensible on principle. In Sarif Jan Bibi v. Aftabuddin Meah (1911) 8 IC 30, the doctrine was applied in the case of a tenancy consisting of 16 parcels of land, from three out of which the tenant has been dispossessed, and it was observed that the reservation in Dhanput's case (1897) 24 Cal 296 that where the dispossession was in respect of only a certain portion the rent for which was separately assessed there should be apportionment was not founded on principle. In Ashutosh Dhar v. Joy Lal Sardar (1911) 18 IC 621, it was applied to a tenancy where rent had been settled at a certain rate per bigha, it being said that the rule as to suspension of rent as a punishment for the dispossession by a landlord of a tenant should not be made nugatory by giving the landlord a decree for rent for the portion of the tenancy still in the occupation of the tenant. In the case of Dwijendra v. Aftabuddin (1917) 39 IC 209 two clear pronouncements were made first:
The result is precisely the same whether he (the tenant) is expelled by violence or is obliged from the exigencies of the situation, to submit to the highhanded act of a powerful landlord;
The true position is that the eviction of the tenant, whether from part of the demised premises or from the whole, entails a suspension of the entire rent while the eviction lasts, whether the tenant remains in possession of the residue or not; the tenancy however is not terminated nor is the tenant discharged from the performance of his covenants other than payment of rent such as a covenant to repair.
7. Side by side with the cases referred to above there was another line of cases in which the tenant had not been dispossessed or evicted by the landlord but had not been put in possession by him of the whole of the lands demised. The case of Annada Prasad v. Mathura Nath (1909) 2 IC 123 to which reference has been made above, may be regarded as a case of this character. Saroda Prasad v. Manmatha Nath Mitter (1915) 28 IC 372 is another case of this nature in which it was held, following Annada Prasad v. Mathura Nath (1909) 2 IC 123, that where a tenant had not been put in possession of a portion of the demised land but nevertheless went on paying the full rent agreed to in the lease, the tenant could not claim an entire suspension of the rent hut only an abatement of it. In Manindra Chandra Nandi v. Narendra Chandra Lahiri AIR 1919 Cal 379 however, which was a case in which the landlord having let out a portion of the land to an earlier lessee, let it out again with other lands to a subsequent lessee and failed to deliver to the latter possession of the entire land leased to him, it was held that the entire rent should be suspended, the reason given being that
the landlord having failed to perform the duty he had undertaken the rent ought to be suspended.
8. In the case of Narendra Chandra Lahiri v. Manindra Chandra Mandi AIR 1922 Cal 153, N.R. Chatterjee, J., pointed out very clearly the distinction between the two classes of cases and observed that
there is no doubt that where the lessor has evicted the lessee from a part of the land demised, the entire rent is suspended,
where the landlord had failed to deliver possession of a part of the demised premises having been dispossessed by a title paramount the lessee cannot claim suspension of the on tire rent but is liable only to pay a proportionate rent for the land in his possession.
9. While this was the state of-the law in this Court a case came up before it, the case of Katyayani Debi v. Udoy Kumar Das AIR 1922 Cal 348, where, upon the findings, it appeared that the landlord had omitted from a bona fide mistake to put the tenant in possession of a portion of the lands leased, the lands being largely jungle, and therefore little known, and this Court held that the tenant was not entitled to a suspension of rent. This case then went up to the Judicial Committee and their Lordships: see Katyayani Debi v. Uday Kumar Das , observed:
The doctrine of suspension 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.
10. These observations of their Lordships have been understood differently by different learned Judges in this Court: and I shall now refer to some of the cases which have been decided by this Court since Katyayani's case AIR 1922 Cal 348. Sushil Kumar v. Rajani Kanta : AIR1927Cal737 was a case in which the defendants had purchased the lands at an auction-sale in execution of a rent decree obtained by the landlords plaintiffs against the original tenants who held them at a rent at a certain amount per bigha, and it was found that the landlords, that is to say the plaintiffs, had leased them out to a third party since the date of the lease of the said original tenants. It was held that Katyayani's case supported a decision that the rule of suspension of rent has no application in cases where the stipulated rent is so much per bigha and that the rule had been applied in cases where the rent reserved is a lump sum for the whole land, but that there was no authority for the proposition that in every such case there would be entire suspension and no abatement of the rent Suresh Chandra v. Mathuranath : AIR1925Cal1187 was a case in which it was found that the tenant was not put in possession of the whole of the demised premises by reason of circumstances over which the landlord had no control, and the rule was not applied.
11. In Tarap Sheikh v. Kunja Behari Roy AIR 1926 Cal 1226 the finding was that it was possible that the third party who was in possession had been in possession from, before the lease in favour of the defendants and suspension of rent was not allowed. The Court referred to and relied on Katyayani's case , in support of the proposition that the doctrine of suspension of rent has been applied where the rent was fixed in a lump for the whole land leased, treated as an indivisible subject, and it cannot be applied where the rent is to be fixed according to the area in possession of the defendant, and that the principle of suspension of rent is inapplicable where the tenant is liable to pay according to the stipulation at so much per bigha per year. The doctrine was applied in the case of Dhirendra Nath Roy v. Bhabatarini Debi : AIR1929Cal395 to a tenancy which bore a lump rental. In that case it was said
where there is a tenancy and that tenancy is an indivisible one in which a lump sum for rent is to bo paid in respect of the whole of the demised premises, if the landlord interferes with the due enjoyment of the premises or any part of them .... It is not possible for the landlord to assert that any portion of the rent is payable in respect of any portion of the premises for in law in such circumstances every piece of the rent is payable out of every portion of the premises demised. There is a doctrine for which authority can be found however that * * where it can he proved that certain portions of the rent are specifically assessed and appropriated to certain parcels of the demised land and in respect of a distinct parcel of which the rent is specified there is an eviction by the landlord, the landlord is entitled to receive, notwithstanding the eviction, his rent in respect of the other portions of the land which are separately and specifically assessed for rent.
12. As I understand these observations they do not purport to lay any weight on the factor of lump rental or rate of rent per bigha but on the question whether the tenancy is in fact divisible into separate parcels separately and specifically assessed to rent. This is exactly what was said in Harro Kumari v. Purna Chandra (1901) 28 Cal 188 to which reference has already been made. And this, in my opinion, is the correct view to take of the matter. In Mahim Chandra v. Karam Ali : AIR1929Cal516 and Abhoy Charan Sen v. Hem Chandra Pal : AIR1929Cal568 , the observations of the Judicial Committee in Katyayani's case have been taken to mean that where there is a lump rental and the tenant has been dispossessed by the landlord from a part of the holding, the entire rent may or must be suspended. In Sajjad Ahmad v. Troilakhya Nath : AIR1928Cal479 , which was a very special case, the Settlement Officer having found a tenancy in respect of the land in actual occupation of the tenant with a rental which was fixed by him as fair, the doctrine of suspension of rent was not applied, Rankin, C.J., observing:
The doctrine of suspension of rent depends solely upon this that the rent due is an entire sum in respect of the land demised .... 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.
13. In Ebadali v. Fatema Bibi : AIR1927Cal951 which was a case of dispossession by the landlord, but the stipulated rent was a certain rate per bigha it was held that the doctrine was not applicable. In Kali Kumar v. Ananda Chandra (1928) 108 IC 589 the distinction between the two class of cases was again pointed out, it being observed that neither Katyayani's case nor the case of Rajani Kanta Biswas : AIR1927Cal737 were cases in which there was dispossession but were cases in which the tenants never obtained possession.
14. I have carefully considered all the decisions referred to above. My own view is that Katyayani's case should not be interpreted as laying down anything beyond what it actually says. It says that in cases where the tenant has not been put in possession of a part of the subject leased and the rent is a lump rent for the whole land leased treated as an individual subject the doctrine has been applied. As their Lordships did not express any disapproval of this application it may be assumed that in such cases it may with propriety be applied. It says then that the doctrine has no application to a case where the stipulated rent is so much per bigha. This passage in my opinion should not be read as detached from the passage which precedes it: the result, in my opinion being that what was meant was that the doctrine has no application to a case where the tenant has not been put in possession of the whole land leased but the stipulated rent is so much per bigha. I am clearly of opinion that their Lordships never intended to say anything in approval or disapproval of the applicability of the doctrine in cases of dispossession or eviction by the landlord.
15. Next, I think there is a clear distinction between the two classes of cases to which I have already referred and which was very clearly pointed out by N.R. Chatterjea, J., in the case of Narendra Chandra Lahiri v. Manindra Chandra Nandi AIR 1922 Cal 153, and that distinction should be borne in mind in applying the decision in Katyayani's case to any particular case. Thirdly, I am of opinion that where dispossession or eviction, by the landlord is found, no consideration whether the rental is a lump rental or a rental at a certain rate per bigha or acre enters into the question. The real test in such cases is what was laid down by Page, J., in the case of Dhirendra Nath Roy v. Bhabatarini Debi : AIR1929Cal395 : Was it one indivisible tenancy and was there interference by the landlord with the due enjoyment of the premises or any part of them I think however that in deciding on this test one may consider whether the tenancy consists of separate mauzahs or parcels of land separately assessed to rent or whether the tenancy is in fact, and not in law only, divisible or indivisible. In other words, 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. This is a distinction which was clearly explained by Maclean, C.J. and Banerji, J., in Harro Kumari v. Purna Chandra (1901) 28 Cal 188. As Rankin, C.J., has pointed out
the doctrine of suspension of rent solely depends upon this that the rent due is an entire sum in respect of the land demised.
16. Is it to be said that the rent fixed for a particular tenancy is not an entire sum in respect of the land demised, simply for the reason that in assessing it a rate per bigha or acre is taken as the basis of the calculation and that rate is mentioned in the lease? As observed by Page, J.:
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 the rent is payable out of every portion of the premises demised.
17. Fourthly, I am of opinion that if it is to be held that where rent is assessed at a rate per bigha the doctrine will not apply though it be a case of dispossession or eviction by the landlord, the doctrine will fail to achieve its object in a vast majority of cases and will offend against the elementary rule that a party cannot be permitted to apportion his own wrong. The doctrine has been applied in this country for well over 60 years now, and should not be rendered nugatory by imposing on it a restriction of this character. In my judgment therefore even though this were a case in which a rate per bigha or acre was the basis of calculation, the Subordinate Judge, upon the findings as I read them, was entirely justified in ordering a suspension of rent. I am prepared however to treat the rental as a lump rental, as has been found by the Courts below. The result is that in my judgment this appeal should be dismissed with costs. Leave has been asked for preferring an appeal under the Letters Patent and I grant it.