1. In the suit out of which this appeal has arisen the plaintiffs sued for arrears of rent. Their case was that they were entitled to additional rent for additional area because 38 bighas were originally leased to the defendants at the rate of Rs. 1-4-0 per bigha and that the defendant at the time of the Record of Rights was found to be in possession of 44 bighas and they were; entitled to additional rent for additional area at the kabuliyat rate. The main contention of the defendant was that the plaintiffs had dispossessed the defendant from a portion of the land leased out and consequently there should be a suspension of entire rent. This argument found favour with both the lower Courts. 'On the ground that, plaintiffs had dispossessed the defendant from a portion of the demised property,' the two Courts held that the plaintiffs were not entitled to recover any rent whatever from the defendant: In appeal on behalf of the plaintiffs the learned Advocate has argued that dispossession by a lessee of the landlord is not necessarily dispossession, by the landlord and also that in a case of dispossession of a portion of the demised property the defendant is not entitled to get a suspension of the entire rent but he is entitled to an abatement of rent proportionate to the amount of the demised property from which he was evicted. The respondent, on the other hand, relied on what may be described the English Common Law doctrine that where a tenant has been evicted from a portion of a demised premises, by his landlord, he is entitled to a suspension of entire rent. I do hot think that this doctrine of the English Common Law can be applied so broadly to every case that may arise in this country where conditions and circumstances may be entirely different from those under which the Common Law doctrine to which I have referred grew up. It seems to me, that to justify a suspension of the entire rent, it must be shown that the eviction was the act of the landlord and was done with the intention of depriving the tenant of the enjoyment of the demised premises or land and not that it was merely accidental resulting from the fact that the real boundaries of the land were unknown to the parties and through inadvertence the landlord gave a second lease which second lease included a portion of the land already demised to the first tenant. The Common Law doctrine of suspension of rent can only be applied in this country as a rule of equity, justice and good conscience and should be applied with caution only where the facts are such that the equities of the case clearly require its application for doing justice between the parties. It is quite clear from the judgment of the two lower Courts that this is really a boundary dispute and there is nothing to show from the finding of the two lower Courts that the landlord deliberately with the intention of evicting the defendant from the land which was demised to him in 1904, granted a second lease to a third party. The plaintiffs have all along denied that Zarif Gazee was their tenant. The only ground on which the lower Courts found that Zarif Gazee was the tenant of the plaintiffs is that his name is entered in the Record of Eights as a tenant of the plaintiffs. There is, however, no evidence that the plaintiffs ever gave any lease to Zarif Gazee. The defendant does not tell us how he was evicted from the land. The mere fact that Zarif Gazee's name is entered in the Record of Rights as in possession of this land as a tenant of the landlords would not of itself show that the landlords were assisting Zarif Gazee in evicting the defendant from a portion of the demised property. There is nothing to show and there is no suggestion that the defendant went to the landlord on dispossession and complained to him of the dispossession. Nor is there anything to show that he knew of the dispossession or realised that he was dispossessed until the entry in the Record of Rights, of the name of Zarif Gazee was made. I do not think that this is a case in which the Common Law doctrine I have referred to beforehand can be applied. It seems to me a case of boundary dispute where all the parties were doubtful and did not know where exactly the boundaries of the property were as the lands were in the Sunderbans and consisted apparently of jungle and uncleared lands. I am, therefore, of opinion that the learned Subordinate Judge did not rightly hold that the tenant was entitled to a suspension of the entire rent in the present case. This suit has been decided on this point alone. The decree of the learned Subordinate Judge and also that of the trial Court must be set aside; and the case will be sent back to the first Court to determine the amount of rent to which the plaintiffs may be entitled for the quantity of land in the possession of the defendant. He will have to determine whether the plaintiffs are entitled to any more rent than that mentioned in the kabuliyat after considering whether the defendant has or has not been dispossessed from some portion of the demised property and also having regard to the consideration whether he is in possession of more lands than what were apparently demised to. him having regard to the terms of the kabuliyat. Both sides are entitled to adduce further evidence with regard to the question of apportionment or enhancement of rent. The plaintiffs are entitled to the costs of this appeal. The costs of the lower Courts will abide the result.
2. I agree.