Asutosh Mookerjee, J.
1. These two appeals have been preferred under Clause 15 of the Letters Patent against the judgments of this Court in two suits for rent, inacmuah as the Judges of the Division Bench were equally divided in opinion. The suits were instituted by the appellant for the recovery of arrears of rent from the defendant, in respect of a tenure, for two consecutive periods. The grounds put forward by way of defense included a claim for abatement of rent on the allegation that the defendant was not in possession of the lands in Mouzah Daskati comprised in the tenancy. The Trial Court gave effect to this contention. On appeal to this Court Mr. Justice Woodroffe held that the view taken by the Court of first instance was well-founded Mr, Justice Caming held, on the other hand, that the claim for abatement could not be sustained in respect of the lands of Mouzah Daskati. The result was that under Section 98, Sub-section (2) of the Civil Procedure Code, 1908, the decrees made by the Subordinate Judge stood confirmed. On the present appeal, the controversy has centered on this question, and it is consequently sufficient to recapitulate concisely such only of the material fasts as bear upon the elation of the point argued before us.
2. On the 27th November 1878 Satyendra Nath Tagore granted a reclamation lease to Ananda Chandra Banerjee and Pratap Narayan Sarkar, in respect of lands in the Sunderbuns, estimated to cavern area of about 3800 bighas within specified boundaries. The lands comprised several Mouzahs including Daskati. As has since transpired this Mouzah was situated in four revenue-paying estates, namely, Nos. 982,991, 992 and 993. Tagore was the proprietor of three of these estates, namely, Nos. 991, 992, and 993 which included all the lands of Monzah Daskati, except 61 acres comprised in Batata No 982; this latter estate was sold for arrears of revenue on the 10th June 1875 and was purchased by one Hari Charan Banerjee on behalf of Hari Charan Chaudhuri, as resited in the deed of release, dated 7th January 1877., Consequently, under the lease granted by Tagore on the 27th November 1873, Banerjee and Sarkar acqaired a good title to possession of the lands of Daskati except the area just mentioned, and the fact is indisputably established that they did obtain possession of all the lands covered by the lease granted to them within the specified boundaries which they expressly covenanted to keep intact. Ten years later, Hari Charan Chowdhury (whose widow is the defendant respondent in these litigations) purchased at an execution sale held on the 20th December 1887, the lands of an under-tenure in Daskati comprised within his estate No. 982, and obtained delivery of possession through Court on the 6th April 1888. Under colour of this purchase, Chowdhury forcibly took possession of all the lands of Daskati and on or about 12th April 1888 he dispossessed Banerjee and Sarkar of the lands of Daskati included in their tenancy. Banerjee and Sarkar were, as will presently appear in embarrassed circumstances, and did not take immediate steps to recover possession of those lands by ejectment of Chowdhury. They had already defaulted to pay rent to Tagore, who had instituted a suit against them early in 1883 for recovery of arrears due under the lease of the 27th November 1878, in respect of the years 1882 1885. The result was that on the 24th February 1887 an amicable settlement was effected between Tagore on the one hand and Banerjee and Sarkar on the other. The latter admitted that the lands in their occupation measured not 3,800 but 4,300 bighas, and they agreed that they would not be competent to apply for abatement of rent for the said admitted 4,300 bighas on any ground whatever. They further agreed as to the amount of arrears actually due, which they undertook to pay in specified instalments. The matter was placed before the Court on the 25th February 1887 when the compromise was confirmed, and on the 8th March 1887 a decree was drawn upon its basis. Sarkar and Banerjee, however, did not tarry out the terms of the decree, which was accordingly enforced by execution, and, on the 20th March 1889 one Nilkantha Singh became the purchaser at the sale which followed in due course. Singh, in his turn, failed to pay rent regularly, and the result was the institution of a suit against him by Tagore for recovery of arrears for the year 1889-90. Singh resisted the claim on the ground that he was not in possession of the lands of Daskati and was entitled to proportionate abatement of rent. The Trial Court upheld this contention, and on the 28th August 1891 made a modified decree in favour of Tagore. On appeal, the District Judge approved of the same view on the 17th February 1892. But on the second appeal to this Court, Norris and Banerjee, JJ. held on the 29th August, 1893 that Singh who had purchased at the sale in execution of the consent decree was bound by the agreement that rent would be paid in respect of 4,300 bighas and that no remission would be claimed on any account whatever. In support of this view, reliance was placed upon the decision of Wilson and Field, JJ.in Ishan Chunder v. Chunder Kant 13 C.L.R. 55. The consequence was that this Court varied the decree and allowed the claim for rent in respect of the entire area of 4,300 bighas. This decision has found its way into the reports; Satyendra Nath v. Nilkantha 21 C. 383 : 10 Ind. Dec. (N.S.) 886; This decree was enforced in due course, and on the 16th April 1894 the defendant Katyani Debi, wife of Hari Charan Chowdhury, became purchaser at the execution sale. As already stated, Banerjee and Sarkar had made no attempt to eject Chowdhury from the lands of Daskati during the brief period which intervened between the 12th April 1888 when the dispossession took place and the 20th March 1889 when their tenure was sold up by Tagore and passed into the hands of Singh. Singh also did not take recourse to litigation to eject Chowdhury during the four years which intervened between the 20th March 1889 when he purchased and the 16th April 1894 when his tenure was sold up and purchased by the present defendant. The defendant, Els might have been anticipated, has never endeavoured to recover the lands of Daskati from her husband, or after his death, from his representatives-in-interest. On the other hand, she appears to have amicably paid to the landlord the entire rent due year after year since the date of her purchase. the interest of the landlord has, by successive transfer and devolution, now become vested in the present plaintiff, who has instituted these two suits for recovery of arrears; the first covers the period 1916 17 and the second 1917-18. In each suit, rent is claimed at the contract rate (13 annas per bighas mentioned in the kabuliyat of the 27th November 1878 in respect of an ares of 5,161 bighas, which is alleged to be the area now found by actual measurement in the possession of the defendant. The claim has been resisted on a variety of grounds which need not be enumerated for our present purpose. It is sufficient to state that one of the objections was that the defendant was entitled to abatement in respect of the lands of Mouzah Daskati which were annexed by her husband on the 12th April 1888. The Subordinate Judge, as already indicated, gave effect to this contention, Mr. Justice Woodroffe has expressed his opinion in favour of the game view, while Mr. Justice Cuming lass held that the wrongful seizure by Chowdhury which might have been remedied by recourse to law by Banerjee and Sarkar or by Singh or by the defendant herself, cannot be invoked to sustain the plea of abatement.
3. On behalf of the tenant-defendant, reliance has been placed on the rule that in the absence of a contract to the contrary, the lessor is deemed to contract with the lessee that if the latter pays the rent reserved by the lease and performs the contracts binding on him, be may hold the property during the time limited by the lease without interruption. This principle is of no assistance to the defendant be-cause it does not include a case of disturbance by persons having no lawful title or right of entry. Reference may in this connection be made to the exposition contained in the classical judgment of Sir John Vanghan, Chief Justice of the Court of Common Fleas, in the case of Hayes v. Bickerit off (1669) Vaughan 118 : 124 E.R. 997:
By covenant in law, the lessee is to enjoy, his lease against the lawful entry, eviction, or interruption of any man, but not against tortuous entries, evictions, or interruptions, and the reason of law is solid and clear, because against tartans acts the lessee hath proper remedy against the wrongdoers.
4. The Chief Justice then slows that the express covenant, like the implied covenant, protects the lessee only against lawful disturbance of strangers, and summarises the 'inconveniences if the law should be' otherwise.'
A man's covenant, without necessary words to make it such, is strained, to be unreasonable, and, therefore, improbable to be so intended; for, it is unreasonable a man should covenant against the tortious acts of strangers, impossible for him to prevent, or probably to attempt preventing.
2. The covenantor, who is innocent, shall be charged, when the lessee hath his natural remedy against the wrongdoer: and the covenantor made to defend a man from that from which the law defends every man, that is, from wrong.
3. A man shall have double remedy for the same injury against the covenantor, and also against the wrongdoer.
4. A way is opened to damage a third person (that is the covenantor) by un-discoverable practice between the lessee and a stranger, for there is no difficulty for the leesse secretly to procure a stranger to make a tortious entry, that he may, there-fore, charge the covenantor with an action.
5. The rule is now firmly settled that like the express covenant the implied covenant protests the lessee against all disturbance by the lessor whether lawful or not, save under a right of re-entry, but as against other persons it protects the lessee only against lawful disturbance; Nash v. Palmer (1816) 6 M. & S. 374 : 17 R.R. 364 : 150 E.R. 1088; Granger v. Collins (1840) 6 M. & W. 458 : 55 R.R. 687 : 9 L.J Ex. 172 : 151 E.R. 492; Young v. Raincock (1849) 7 C.B. 310 : 18 L.J.C.P. 193 : 13 Jur : 539 : 137 E.R. 124 : 78 R.R. 652; Sandeson v. Berwick upon Tweed Corporation (1884) 13 Q.B.D. 547 : 53 L.J.Q.B. 559 : 51 L.T. 495 : 33 W.R. 67 : 49 J.P.6; Wallis v. Hands (1893) 2 Ch. 75 : 62 L.J.Ch. 586 : 3 R. 351: 68 L.T. 428 : 41 W.R. 471. A similar view was adopted in Benjamin Douzelle v. Girdharee Singh 23 W.R. 121 where it was stated that in the absence of any exprers agreement to the contrary, a landlord is under the implied obligation to indemnify his tenant against ouster or disturbance of possession by his own act or by the acts of these who claim under him or have a light paramount to his but not against the wrongfut acts of third parties. To the same effect are the decisions in Vithilinga Padayachi v. Vithilinga Mudali 15 M. 111 : 5 Ind. Dec. (N.S.) 426; Tayawa v. Gurshidappa 25 B. 269 : 2 Bom. L.R. 1070 and Muktar Ahmad v. Sundar Koer 19 Ind. Cas. 815 : 17 C.W.N. 960. In the case' before us, as we have already teen, Banerjee and Sarkar were wrongfully deprived of the lands of Dashati by Chowdhury who had no lawful title thereto They bad their remedy against Chowdhury, and even if they, or after them, Singh, accosted in the dispossession, the defend-ant might have recovered possession of the lands from her husband Chowdhury. Consequently, the defendant cannot successfully claim the benefit of the rule of implied covenant for quiet enjoyment.
6. On behalf of the defendant, the contention has next been put forward that the plaintiff landlord is not entitled to the full rent, as there has been a breath of the implied covenant to give possession. In support of this proposition, reliance has been placed upon the decisions in Coe v. Clay (1829) 5 Bing 440 : 3 M & P. 57 : 7 L.J. (O.S.) C.P. 162 : 30 R.R. 699 : 130 E.R. 1131; Jinltt v. Edwards (1856) 11 Ex. 775 : 4 W.R. 303 : 105 R.R. 787 : 156 E.R. 1045; Wallis v. Hands (1893) 2 Ch. 75 : 62 L.J.Ch. 586 : 3 R. 351: 68 L.T. 428 : 41 W.R. 471; Zaminiar of Vizianogram v. Behara Suryanarayana Patrulu 25 M. 587 : 12 M.L.J. 249; Meenakshi Sundara Nachiar v. Chidambaram Chetty 15 Ind. Cas. 711 : 23 M.L.J. 119 : 12 M.L.T. 124 : (1912) M.W.N. 813 and Manindra Chandra Nandi v. Narendra Chandra Lahiri 52 Ind. Cas. 13 : 23 C.W.N. 585 : 46 C. 956. The principle deducible from these decisions is of no assistance to the defendant. Assume that, in the absence of a contract to the contrary, the lessor is bound, on the lessee's request, to pat him in possession of the property, and that the lessee has a good defence to an action for rent if the lesser is not able or willing to do so on the agreed date : Holgate v. Kay (1844) 1 Car. & K. 341 : 70 R.R, 800; Bung Loll Singh v. Roodur Pershod 17 W.R. 386; Bullan v. Lalit Jha 3 B.L.R. App. 119; Hurish Chunder v. Mohinee Mohun Mitter 9 W.R. 582; Munnee Dutt Singh v. Willian Campbell 12 W.R. 149; Shama Prosad Ghose v. Taki Mullik 5 C.W.N. 816 B.L.R. App. 119; Pemmaraju Venkiah Garu v. Secretary of state 6 Ind. Cas. 727 : M. 108 : M.L.T. 390 : (1910) M.W.N. 456; Secretary of State v. Pemmoraju Venkayya Garu 35 Ind. Cas. 254, 30 M.L.J. 575 : 19 M.L.T. 318 :3L.W. 443 : (1916) M.W.N. 342 :40 M.910 and Narainsawamy Naidu v. Yerramali 5 Ind. Cas. 479 :33 M. 499 :7M.L. T. 119 : (1910) M.E.N. 221 & 280, it is plain that has been no default on the part' of the landlord, for, Tagore did place the tenants, Banerjee and Sarkar, in possession of all the lands of the tenure at the inception of the tenancy. There has thus been prima facie no breach of the implied covenant to give possession. The defendant has made a desperate endeavour to escape from this insuperable difficulty, and has strenuously contended that there is, in law, a fresh contract of tenancy constituted, whenever a tenure is brought to sale at the instance of the landlord, in execution of a decree for arrears of rent, so that on every sash successive occasion be becomes hardened with an implied obligation to place the purchaser in possession as if there was a new demise, the commencement of a new term. This argument is manifestly fallacious and is based on a fiction which has no counterpart either in the actual intention of the parties or in racognised principles of law. When in execution of a decree for arrears of rent, a tenure is exposed for sale, the landlord does not intend that in the very process of sale, the tenure should be extinguished, and a new contract of tenancy treated between him and the successful bidder. Section 159 of the Bengal Tenancy Act contemplates a real sale, a real purchase, in other words, a transmission, not an extinction of interest. The purchaser acquires the existing tenure, subject to protested interests, but with power to annul incumbrances thereon, by recourse to the prescribed procedure. The landlord cannot consequently be called upon by the purchaser to place him in possession by expulsion of a trespasser who may have dispossessed the defaulter. If such trespasser has been in possession from less than twelve years, he has acquired no title and may be ejected by the purchaser by a suit; on the other hand, if the trespasser has acquired a statutory title against the defaulter by lapse of time, ha is still an incumbrancer and is equally liable to be ejected by a suit after annulment of the incumbrance. Ishan Chandra v. Sefatulla Sikdar 68 Ind. Cas. 219 :35 C.L.J. 36 : 25 C.W.N. 703; Arsadulla v. Munseb Ali 14 Ind. Cas. 349 :16 C.L.J. 539: 16 C.W.N. 831; Satish Chandra V. Mun amali Debi 15 Ind. Cas. 869 : 17 C.W.N. 340; Bhusan Chandra Ghosh v. Srakanta Banejee 33 Ind. Cas. 957:45 C. 759 : 23 C.L.J. 485 : 21 C.W.N. 165; Monmotha Nath Mitter v. Anath Bundhu Pal 61 Ind. Cas. 469: 25 C.W.N. 103; Gokul Bagadi v. Debendra Nath Sen 11 Ind. Cas. 453 : 14 C.L.J. 136; When the purchaser is armed with such powers,' there is no reason why he should have authority, at his choise, to enforce the intervention of the landlord. We are not unmindful that there is a dictum of Rampini, J. in Kali Nath Sen v. Trailokhya Nath Boy 26 C. 315 : 3 C.W.N. 194:13 Ind. Dec. (N.S.) 805 which, if, generalised, may lend apparent support to the theory that on the sale of a tenancy a new contract is created between the auction-purchaser and the landlord. This view, however, was not adopted by Banerjee, J. in the case mentioned and was expressly repudiated by Sir Francis Maclean, C.J., and Geidt, J. in Narendra Nath Sarkar v. Moniruddi 69 Ind. Cas. 109 : 35 C.L.J. 209 [Second Appeal No. 238 of 1801 decided, 14th August 1903.] The dictum was subse-quently explained away by Rampini, J., himself in his judgment in the Full Bench case of Lal Gopal Dutt Chowdhry v. Manmatha Lal Dutt 32 C.258: 9 C.W.N. 175. We hold accordingly that in the case before us no new tenure was (treated, either on the 20th March 1889 (when Singh purchased) or on the 16th April, 1894, (when the defendant purchased) and it is significant that on neither occasions did the purchaser request the landlord to give possession by the eviction of Chowdhury.
7. Finally, the defendant has urged, that the plaintiff is bound to allow abatement of rent for the Daskati lands, as the relationship of landlord and tenant no longer subsists between the parties in respect threof. This argument is baaed on the erroneous theory that' the adverse possession of Chowdhury which has extinguished the interest of the tenure-holder has also operated to extinguish the title of the landlord. It is now well settled that the possession of a trespasser, during the continuance of a lease, does not become adverse against the lessor; the lessor is in possession by receipt of rent from his lessee; so long as such rent is not intercepted by a trespasser he cannot be said to have been dispossessed. Hazra Sardara v. Kunja Behari Nag 40 Ind. Cas. 271 : 25 C.L.J. 635 : 21 C.W.N. 1001. This rule, first enunciated by Peacock, C, J., in Davis v. Kazee Abdool Hamed 8 W.R. 55, and shortly afterwards independently recognised by Norman, J. in Huronath Rai v. Indoo Bhoosun Deb 8 W.R. 135, was re-affirmed by Peacock, C.J., after elaborate discussion in Womesh Chunder v. Raj Narain Roy 10 W.R. 15. We may usefully re-call here the following observations: 'The difficulties and dangers of Zemindars would be great if they were bound to bus for declarations of right whenever they should discover any person other than the tenant in possession of any part of the land included in a patni tenure. They would have no means of knowing, and no means, that I am aware of, of compelling either the tenant or the trespasser to reform them whether the person in occupation was there with the consent of the holder of the tenure or an under-tenure derived from him, or merely as a trespasser. To hold that a grantor is bound to sue immediately a trespass is committed upon his tenant, and that he will be bound by limitation if he does not sus within twelve years from the time, that the trespass was first committed would open such a door to friend and collusion between tenants and trespassers that the Zemindar or land owner, when be seeks to enforce the payment of his rent, would often find trespassers, whom in consequence of limitation, he could not get rid of, in possession of the greater portion of the tenure, and who, as soon as he should have defeated the land owner by the plea of limitation, would probably share the spoil with the defaulting tenants. Instead of granting under-tenures tenant would allow their friends and relations to trespass upon their tenures, and thus protest them by limitation in the event of default in payment of their rent. But even if the grantor could, during the existence of the under-tenure, have maintained such Anacin against a trespasser upon his undertenant, it is clear that a purchaser of the under-tenure could not do so before the sale; and if not, how could the grantor of an under, tenure sell the under tenure in the state in which he created it, if the purchaser is to be barred by limitation against persons who have encroached upon the under tenant.'
8. The principle is applicable, as is clear from the judgment of Peacock, O.J., whether the lease, during the subsistence whereof the. dispossession of the tenant takes place, is for a term or is in perpetuity: see Hrek Chand v. Bejoy Chand 2 C.L.J. 87 : 9 C.W.N. 795. Reference may also be made to Beioy Chand Banerjee v. Rally Prosonno Mookerjee 4 C. 327 : 2 Shome L.R. 106: 2 Ind. Dec. (N.S.) 207; Krishna Gobind Dhur v. Hari Churn Dhur 9 C. 367 : 12 C.L.R. 19 : 4 Ind. Dec. (N.S.) 894; Sheo Sohye Boy v. Luchmeshur Singh 10 C. 577 : 5 Ind. Dec. (N.S.) 387; Sarat Sundari v. Bhobo Pershad Khan 13 C.101 : 6 Ind. Dec. (N.S.) 566; Kishwar Nath Sahi Deo v. Kali Sankar Sahai 10 C.W.N. 343 and Baikuntha Nath v. Chaitanya Charan 57 Ind. Cas. 994, which are in harmony with the opinion expressed by Peacock, C.J. Sea also Thamman Pande v. Maharaja of Vizianagram 29 A. 593 : 4 A.L.J. 726 : A.W.N. (1907) 185; Harnaman v. Dasondhi 58 Ind. Cas. 733 : 1 L. 210 : 112 P.L.R. 1920; Girdhari Lal v. Umdajan 63 Ind Cas. 717 : 3 L.L.J. 215. The contrary view indicated in Brindabun Chunder Sircar v. Bhoopal Chunder Biswas 17 W.R. 377, and Prosunnomoyi Dasi v. Kali Das Roy 9 C.L.R. 347, though supported by Sundara Aiyar, J., without the (sic) of Abdur Rahim, J,, in Ambalavana Chetty v. Singaravelu 15 Ind. Cas. 146 : (1912) M.W.N. 669, cannot be justified on principle and is opposed to what is regarded by Lord Alverstone, C.J. as well established doctrine in Walter v. Yalden (1902) 2 K.B. 304 : 71 L.J.K.B. 693 : 87 L.T. 97 : 51 W.R. 46 : 18 T.L.R. 668 : See also Poole v. Griffith (1864) 15 Ir. C.L.R. 270. The position may be different where there are successive leases for terms, and much may be urged in support of the contention that if on the actual termination of one of the leases, the landlord grants a fresh lease without exercising his right to sue for ejectment forthwith vested in him, time will begin to run against him from that date: Ahmadi Begum v. Mahasay Tarasnath Ghosh 21 Ind. Cas. 233 : 17 C.W.N. 1173 at p. 1181 : 18 C.L.J. 399; Ecclesiastical Commissioners of England v. Bows (1880) 5 A.C. 733 : 49 L.J.Q.B. 771 : 43 L.T. 353 : 29 W.R. 159 : 45 J.P. 36; Kennedy v. Woods (1868) 2 I.R.C.L. 436. There is plainly no real analogy between such a hypothetical case and the case before us where the dispossession took plate during the continuance of a permanent lease. The adverse possession of Chaudhury, however operative it may have been as against Banerjee, Sarkar, Singh and the defending can in no sense be treated as effective to extinguish the title of the plaintiff as landlord. There is thus no foundation for the view that the defendant has ceated to be the tenant of the plaintiff in respect of the lands of Daskati.
9. But if the claim for abatement is thus found beset with inextricable difficulties when examined from different standpoints, there is a still graver objection, which mast be surmounted before it can be successfully maintained. We have seen that on the 24th February 1887 an amicable settlement was effected between Tagore, the landlord, on the one hand, and Banerjee and Sarkar, the tenants, on the other; the result was that the tenants agreed that they would not be competent to apply for abatement of rant on any ground whatever in respect of the area of 4,300 bighas found by measurement to be in their occupation. This was clearly a valid agreement between the landlord and the tenants, and the tenancy was thenceforth to be held subject to this condition. It was on this very ground that Norris and Banerjee, JJ, overruled the claim for abatement put forward by Nilkantha Singh. The defendant as execution-purchaser, does not, in this respect, stand in a position of greater advantage than Nilkantha Singh who also had purchased at a sale for execution of a rent decree. Thus, apart from the principle of res judicata, the decision of Wilson and Field, JJ. in Ishan Chunder v. Chunder Rant 13 C.L.R. 55, and of Norris and Banerjee, JJ., in Satyendra Nath v. Nilkantha 21 C. 383 : 10 Ind. Dec. (N.S.) 886, treated as precedents binding on this Court, negative the claim for abatement. But as we have also shown, the claim cannot otherwise 'be sustained on the merits.
10. The result is that these appeals must be decreed and the decree of the Subordinate Judge in each suit varied so as to allow the plaintiff rent of plots C. D. and Dl depicted in the map of the Commissioner as lands of Daskati included in the tenure held by the defendant.
11. The plaintiff will be entitled to the costs of each of these appeals under the Letters Patent. The hearing fee will be assessed according to the scale, in the appeal valued above Rs. 5,000, and at Ra. 150, in the other appeal. In respect of the hearing before the Division Bench, as the cross-objection of the plaintiff in the first suit has succeeded, he will be entitled to the costs thereof, and we assess the hearing fee at Rs. 150. As the appeal of the plaintiff in the second suit has also succeeded, be will be entitled to the costs thereof, bat be separate hearing fee will be allowed. The order of the First Court as to proportionate costs will be left undisturbed. But in determining the costs in all the Courts the amount as settled by this judgment will be adopted as the basis. The exact amount now decreed will be calculated by the parties and inserted in the decree. Liberty reserved to speak to the minutes.
12. I agree.
13. I agree.