1. This is an appeal against a judgment and decree of the Subordinate Judge reversing a decree of the Munsiff. The suit was one for rent based on a kabuliyat dated some time in March or April 1911. In the kabuliyat three plots of land appear to have been let out to the tenants. The area given by guess was 18 bighas. It is stipulated among other things that if by measurement the lands are found to be in excess of 18 bighas the tenant will be liable to pay Rs. 2 as rent for each bigha of land found in his occupation. The plaintiff's allegation was that the defendants were in possession of 25 bighas of land and on the basis of the agreement referred to he claimed Rs. 50 as rent. The Munsiff dismissed the suit mainly upon the ground that within the area demised the plaintiff admitted that two persons named Saiyed and Manulla held lands under him on the basis of the kabuliyats executed by those persons in favour of the plaintiff and that the plaintiff had obtained a decree against Saiyad. This the Munsiff held amounted to a dispossession by the plaintiff of the defendants although the plea of dispossession by the landlord was not specifically pleaded by the tenant-defendants. The real defence was that the defendants were not in possession of any land in excess of 18 bighas. On this finding of the Munsiff, he held that the rent payable by the defendants was liable to be suspended as the plaintiff had interfered with the peaceful possession of the land held by the tenants. On appeal by the plaintiff this decision was reversed by the Subordinate Judge.
2. Two points have been urged against the decision of the Subordinate Judge on behalf of the defendant-appellant before us. The first point is that the Subordinate Judge was in error in holding that the land let out to the defendant under the kabuliyats was 18 bighas only within the boundaries mentioned in the kabuliyats and that on account of this error the Subordinate Judge held that the possession of Manulla and Saiyad on the basis of the kabuliyats in favour of the landlord did not amount to dispossession of the tenants causing suspension of rent. It may be conceded that under the kabuliyats the entire land within the boundaries was let out to the defendants; but from that it does not follow that the defendants upon the facts found by the Subordinate Judge were entitled to suspension of the entire rent. Manulla had purchased certain lands within the boundaries of the kabuliyats from the defendants themselves. Manulla's possession, therefore, cannot amount to dispossession by the landlord. There is no finding as to how Saiyad came into possession of his land, and it must be for the very good reason that this plea was not raised in the written statement. It may be that Saiyad was in possession from before the lease was granted to the defendants.
3. In order to cause suspension of rent on account of eviction by the landlord the finding must be clear that there has been an eviction in fact and the question must be tried whether the plaintiff, that is the lessor, was a party to the eviction and it must also be found as a fact as to whether the act was done by the landlord with the object of depriving the tenants of the peaceful enjoyment of any portion of the demised premises. These elements are necessary to be found for the purpose of calling into aid the doctrine of suspension of rent on account of eviction by the landlord. Moreover, in the present case, the rent was assessed with reference to the area in the possession of the tenants and it would be wrong to apply the principle of suspension of rent where the tenant is liable to pay rent according to the stipulation at so much per bigha, as in the present case at Rs. 2 per year for each bigha of land in his occupation. In the recent case of Katyayani Debt v. Uday Kumar A.I.R. 1926 P.C. 97 their Lordships of the Privy Council observed 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 the possession of the tenant. On this ground the first contention fails.
4. The second contention really amounts to a question of fact which had a reference to the area in the possession of the defendants. The plaintiff gave evidence with regard to the area in the possession of the defendant which was found by the commissioner on measurement to have been 28 bighas. The defendants alleged that part of the land in their possession was held under a third party and that they have been occupying both the plots by removing the demarcating line between the two plots. The Subordinate Judge has held that the defendants were found to prove that they have been holding a part of the land under a third party, and on the evidence he finds that the land appertains to the holding under the plaintiff. The plaintiff has claimed rent for only 25 bighas which is less than the quantity actually in the possession of the defendants. On these findings this appeal must be dismissed with costs.