1. This is an appeal in a suit brought by the plaintiffs-appellants, who may be described as darpatindars, to recover arrears of rent for the years 1309 to 1312 from the defendants who possess a sepatni interest in the mahal.
2. The facts of this litigation are hardly in dispute. The predecessors of the plaintiffs obtained a darpatni lease in the year 1295, the rent reserved being Rs. 1,333-8-9. The darpatni interest was sold and purchased by the plaintiffs in execution of a rent decree obtained by Jawaherkumari Debi, as patnidar and the sale certificate empowered the auction purchaser to annul all sorts of encumbrances. On the basis of this sale certificate, and also, it appears, having regard to the durpatni patta of the 24th Bysak 1295, wherein the lessee was forbidden to carve out any seputni interest, the plaintiffs sought to cancel the seputni lease set up by the defendants; and in accordance with that intention, they served a notice upon them. The defendants, however, declined to yield up possession to the auction purchasers, and a succession of cases, both Civil and Criminal, was the natural result. On the 3rd October 1902, corresponding with 17th Ashin 1309, the Magistrate attached the subject of dispute under Section 146 of the Criminal Procedure Code. For the management of the attached property, and the collection or rents from the tenants, two ijara leases were successively granted by the Magistrate to Mahatab Khan and Safaetullya Chowdhury for the years 1311 and 1312, respectively. In the first ijara lease, Mahatab Khan covenanted to pay the head rent Rs. 1,333-8-9 to the patnidars and a sum of Rs. 1.610 by way of the ijara rent. Similarly, Safaetullya agreed to pay the same rent to the patnidar, plus a sum of Rs. 1,266-7-3, which was to be deposited in the collectorate to await the order of the Magistrate. It is important to notice, in both these ijara leases, that the subject of attachment was the seputni interest tinder the darpatnidars, and the further description is of mouza Khas taluk known as Lot Kims taluk appertaining to a certain mahal.
3. It is perfectly clear, therefore, that the attachment was operating so as to exclude the present defendants from making khas collections of rent. That this was the intention of the authorities is also clear from the further fact that the defendants were permitted to withdraw the net amounts Rs. 1,610 and Rs. 1,26,6-7-3 paid in by the ijaradars and lying in deposit in the Colleeterate. These sums aggregate Rs. 2.876-7-3. There was a suit between the present parties: the defendants sued the plaintiffs for contribution in respect of sums paid by them for saving the darputni interest of the plaintiffs from the hammer. That danger so averted was in respect of the arrears of rent which accrued due up to a period not later than April 1902, and a decree was obtained by the present defendants on the 25th June 1906. They also succeeded, a few months later, (4th September 1906), in obtaining an ex parte decree, in Suit No. 67 of 1905 against the present plaintiffs, establishing their sepatni title. It appears that the money withdrawn by them, as already mentioned, was withdrawn in pursuance of this final adjudication of their title.
4. The Subordinate Judge dismissed the plaintiffs' suit. He framed three issues, of which we are concerned with the first and second only. The contentions addressed to us in this appeal arise out of these issues. They are, first, that the plaintiffs did not substantially interfere with the enjoyment of the seputni by the defendants so as to entitle the defendants to a suspension of the rent during 1309 to 1312; and, secondly that the suit is not barred by res judicata, the latter contention arising out of the argument addressed to us by the learned Vakil for the defendants who endeavoured to show that the decision of the Subordinate Judges in that respect is not correct.
5. Dealing, in the first plea, with the question of res judicata, we are disposed to agree with the Subordinate Judge that there are not sufficient materials in this suit to hold that the rents claimed here were the subject matter of the contribution suit the details of which we have mentioned, but we do not agree with the Subordinate Judge when he says: There is nothing to show that the parties in this suit were the parties in the former suit.' On a comparison of the names and descriptions of the parties, we find that the parties, then and now, are identical. We are not satisfied that the contribution suit, in respect of the set off claimed, concerned the rents which are the subject of the present' litigation. Therefore, the plaintiffs are not barred by the rule of res judicata.
6. The real contention, however, in this appeal, relates to the question of substantial interference by a landlord with the enjoyment of his holding by the tenant. The principle, that the tenant is entitled to a (suspension of rent during such an interruption of enjoyment is completely settled by the authorities. The only difficulty that arises is to apply the principle to concrete instances. But a variety of cases have been cited before us, and we propose to deal briefly with each of them.
7. The case of Kadumbinee Dossia v. Kasheenauth Biswas 13 W.R. 338 is an authority for somewhat extreme position. In a suit for rent in which the defendants pleaded that, during the period for which rent was claimed, the tenants had been out of possession of the land, having been ousted by a third party to whom the zamindars, plaintiffs, had given a lease of the land, it was nevertheless held that the plaintiffs were precluded from; suing the defendants for rent on account of such period, even though the latter had recovered a decree with wasilat for the period of dispossession.
8. This case was noticed in a more recent; decision of this Court, Dhunput Singh v. Mohamed Kazim Ispahain 24 C. 296, which has been followed by the Subordinate Judge. There, can be no doubt, on the facts of that case, that if the landlord's interference was in respect of only a certain portion of the demised property, the rent for which was separately assessed, there, should be an apportionment. But it was also shown that the landlord's interference, in respect of even a portion of the property carries with it, in ordinary cases, the Joss of the entire rent, which, otherwise, he would be entitled to. We observe that this case was distinguished in Harro Kumari Chowdhrani v. Purna Chandra Sarbogya 28 C. 188. If the want of possession of the seputni, in the case before us, related only to a portion of the Lot Khas taluk, these cases might be more, attentively considered; but the facts show that the attachment and the subsequent ejectment were with regard to the entire interest of the defendants.
9. The decision in Rani Lalita Sundari v. Rani Suronomoyee 5 C.W.N. 353 approves the principle in Dhanpat Singh v. Mohamed Kazim Ispahain 24 C. 296 and affirms what may be regarded as settled law that the tenant need not necessarily be completely evicted in order to secure an exemption from liability to pay rent.
10. It has been contended on behalf of the plaintiffs-appellants that, in attempting to take possession of the sepatni, they were acting in the bona fide belief that they had a right to do so, and that they were justified in so believing as they had purchased the darpatni tenure at a sale in execution of a decree for rent due thereon, and the sale certificate expressly empowered them to annul all encumbrances.
11. In support of this contention reliance has been placed on the case of Rani Surno Moyee v. Shoshee Mokhee Barwania 12 M.I.A. 244 : 11 W.R. 5 (P.C.) : 2 B.L.R. 10 (P.C). In that case, the zamindar was held entitled to recover, from the patnidar, rent for the period during which the latter was out of possession in consequence, no doubt, of the initial act of the zamindar in putting in force, through the medium of the Collector, the summary provisions of Regulation VIII of 1819, for recovery of arrears of rent; but the distinction between that case and the present one is this, that in that case the zamindar, when he applied to the Collector for sale' under the Regulation, pursued the legal remedy provided in that behalf, though, in doing so, he inadvertently omitted some of-the formalities prescribed by it, whereas in this case the plaintiffs, on being resisted by the defendants, attempted forcibly to take possession instead of resorting to a Court of law for redress. The direct result of this unlawful act was that the defendants were thrown out of possession by the Magistrate. There is a further distinction, in that, in Privy Council case, the patnidar recovered the whole of the profits of the patni for the period during which he was out of possession, whereas, in the case before us,, the se-patnidars received a very small portion of the profits for the four years during which they had been kept out of possession.
12. On reason and the authorities, there can be no question that the facts bring the case of the defendants within the purview of the general rule that where a tenure-holder is not in a position to collect rents from his own subordinate tenants, owing to wilful, interference of the landlord, the latter is not entitled to recover his own dues from the person whom he has prejudiced.
13. The period in suit, 1309 to 1312, may be considered in two aspects. During the earlier period (1309 and 1310) there was no ijara settlement. Both then and previously, the plaintiffs were endeavouring to secure possession and oust defendants. It has been found by the Subordinate Judge that the defendants did not collect any rents for this period, and the circumstances in evidence show that the plaintiffs themselves, collected rents and kept the defendants out of the enjoyment of the sepatni. These are the facts which we find and which certainly preclude the plaintiffs from realising the yearly rental of Rs. 1,533-8-9 from the defendants.
14. Much stress has been laid, by the learned Vakil for the plaintiffs-appellants, upon the undoubted fact that the defendants withdrew the two sums, aggregating Rs. 2,876 odd, from the Collectorate, and it is urged that the plaintiffs, having been compelled to pay their rents to the putnidar, ought, in equity, to recover what was agreed upon to be paid by their subordinate tenure-holders. We are unable to accede to this contention. Under the ijara leases, it was the duty of the two ijaradars to pay the rents reserved to the putnidar, and all that the defendants obtained from the Magistrate was the least amounts, which, if they had retained Mas possession of the sepatni interest they would| have been able to collect; indeed, they might have been able to collect very much larger amounts, so that the sums of Rs. 1,610 and 1,266, representing as they do the sepatni interest of the defendants, cannot, in any possible/circumstances, be held liable to be diminished by deduction of the rents paid to putnidars. These sums were withdrawn after the determination of the title suit No. 67 of 1905 and followed, in the usual course of events, the result of that litigation.
15. We are, therefore, of opinion, first, that the suit is not barred by res judicata; secondly, that the plaintiffs, by reason of their interference with the sepatni interest of the defendants, are not entitled to obtain rents for the years 1309 to 1312; and, thirdly, that in respect of the sums drawn out by the defendants, the latter cannot be liable to satisfy the rent dues of the plaintiffs for the years 1311 and 1312.
16. The result is that the appeal fails and is dismissed with costs.