1. The circumstances which have given rise to the litigation out of which the present appeal arises may be briefly narrated. The plaintiff-respondent is the owner of a fifteen annas two gundas and odd share in a zemindary in which Kamini Sundari Chowdhurani and others own the balance of seventeen gundas and odd share. Under the entire zemindary, there appears to have been a howla, which by successive devolution came to be possessed by the plaintiff alone. The result was that the plaintiff was the zemindar as well as the, holadar in respect of a fifteen annas and two gundas share and he was a holadar under Kamini Sundari Chowdhurani and others in respect of the remaining seventeen gundas. The defendant, now appellant; before this Court, has purchased a six annas thirteen gundas and odd share of the howla. The result of this transaction has been that she is a co-sharer of the plaintiff in the howla and is also a tenant under him in the zemindary in which the plaintiff owns a share. The present action has been commenced by the plaintiff for recovery of rent of the share of the howla owned by the appellant in respect of the years 1309 to 1312. In the plaint it is stated that the plaintiff has collected rent from the tenants under the howla and has allowed credit to the defendant in respect of the sums collected by him in excess of his own share. The defendant has resisted the claim substantially on two grounds, namely, first that Kamini Sundari Chowdhurani and others who own a seventeen gundas and odd share in the zamindary ought to have been made parties to the litigation; and secondly that as the plaintiff had interfered to a substantial extent with the collection of rent from the under-tenants by the defendant and had in fact rendered it practically impossible for the latter to collect any rent at all during the years in dispute, he is not entitled to claim any rent. Both these objections have been overruled by the Courts below and in the result a decree for rent has been made in favour of the plaintiff to the extent of over Rs. 3,000.
2. The defendant has now appealed to this Court and reiterated the grounds upon which she resisted the claim of the plaintiff in the Courts below. After a careful consideration of the arguments which have been addressed to us on both sides, we are of opinion that the appellant is entitled to succeed upon both the grounds.
3. In support of the first contention of the appellant, it has been pointed out that, as found by the Courts below, there is only one howla, of which the lands are joint and the rents are jointly realised from the tenants; consequently it cannot be affirmed that the share in the howla which has been purchased by the appellant falls exclusively within the share of the zemindary owned by the plaintiff; in other words, there has not been such a sub-division of the howla as would entitle the plaintiff to a decree for rent in the absence of his co-sharers in the zemindary. To this argument there is, we think, no answer possible. It has been contended by the learned Government pleader who has appeared on behalf of the respondent that, when the defendant purchased a six annas and odd share in the howli, she stood in the position of a tenant under the. plaintiff alone, because as soon as he became the owner of the entire howla and had to pay rent to his co-sharers in the zemindary alone, the howla was practically split up, and, by a fiction of law, it might be deemed that there was a separate collection of rent in respect of the shares of the zemindary owned respectively by, the plaintiff and his co-sharer. We are unable to accept this contention as sound. In our opinion, there is nothing to show that the share in the howla now owned by the defendant falls exclusively within the share of the zemindary owned by the plaintiff. It is consequently quite conceivable that if the decrees made by the Courts below were maintained, Kamini Sundari might bring a suit for rent against the defendant and render her liable for the share of rent payable in respect of such shape of the howla, as may be situated within her share of zemindary. The defendant cannot justly be placed in this predicament. It has finally been suggested by the learned Vakil for the respondent that if Chowdhurani be deemed a necessary party to the suit, she may be added as such at the present stage. We do not think that it would be proper to entertain this application now. The objection as to defect of parties was taken in the written statement and has been pressed throughput the litigation. The plaintiff has tried his best to defeat the objection on the allegation that Kamini Sundari was not interested in the share of the howla in respect of which rent is claimed in the suit. Upon the facts found, he has completely failed to establish that case. He cannot now be rightly permitted to turn round, to make a new case, and to have Kamini Sundari joined as a party defendant to the present litigation. On this ground alone, the appellant is entitled to succeed and to obtain a reversal of the decree of the Courts below. We are reluctant, however, to rest our decision on what might be deemed a technical ground. We shall, therefore proceed to consider the second objection which relates to the merits of the case.
4. In support of the second ground, it has been argued by the learned Vakil for the appellant, that when a landlord interferes substantially with the enjoyment by the tenant of the demised property, the tenant is entitled to a suspension of rent during such interference, even though there may not be actual eviction. This proposition of law has not been seriously contested on behalf of the respondent, and on the authorities to which we shall presently refer, the position cannot be successfully challenged. It is now well settled that if there has been an eviction by a landlord of his tenant from oven a part of the demised premises, the entire rent is suspended. This principle of law, though well recognised, is not altogether free from difficulty in its application to concrete cases. It cannot, however, be disputed that if the tenant has been deprived of actual possession of a portion of the land comprised in the tenancy, as in the case of Hurro Kumari Chowdhurani v. Puma Chandra Sarbogya 28 C. 188,the doctrine is applicable in favour of the tenant. Nor can it be disputed that if, as in the cases of Kristo Soondur v. Koomar Chander Nath Roy 25 W.R. 230, Dhunput Singh v. Mohamed Kazim Ishpahain 24 C. 296 and Rani Lalita Sundari v. Rani Surnomoyee Dasi 5 C.W.N. 353, the landlord interferes to any appreciable extent with the collection of rent by a tenure-holder under him, the same principle is applicable. Again a question has been raised in some of the cases, whether the doctrine applies when the dispossession is effected, not directly by the landlord, but by a lessee from him. It has been held in the case of Kadumbinee Dossia v. Kasheenauth Biswas 13 W.R. 338, that if the landlord is a party to the dispossession, the entire rent is suspended; while in the cases of Kali Prasanna Khasnabish v. Mathura Nath Sen 34 C. 191 and Annada Prashad v. Mathura Nath 2 Ind. Cas. 123 : 13 C.W.N. 702 : 9 C.L.J. 585, it has been ruled that if the landlord is not a party to the dispossession by his lessee, the tenant is not entitled to claim suspension of the entire rent. In other words, the law will not apportion rent in favour of a wrongdoer, and, therefore, if the landlord wrongfully dispossesses his tenant bf any portion of the demise premises, the rent, is suspended for the whole, but an eviction by the grantee of the lessor, without the lessor's agency or procurement, does not debar him from recovering rent for that portion of the premises remaining in his possession: It may no doubt sometimes be a question whether the eviction has been held by the ace of the landlord, or whether it has taken place without any interference, on his part, and in a recent case of this Court to which our attention has been invited, Rai Charau Sar v. The Administrator for General of Bengal 2 Ind. Cas. 169 : 36 C. 856 : 9 C.L.J. 578 : 13 C.W.N. 85, it has been ruled that where the dispossession in its inception was due to an act of nature, (such as diluvion of the land of the tenancy), not possible of control by either the landlord or the tenant, the landlord is not liable to lose the entire rent, because subsequently on reformation, he has in good faith settled the land with a stranger. Similarly, where, as in Gopal Chandra v. Chowdhury Krishna Chandra 4 Ind. Cas. 63 : 9 C.L.J. 595, the landlord is in no way to blame for the dispossession, or, where, as in Srimati Moni v. Kala Chand Gharami 9 C.W.N. 871, the act of the landlord (in that case, the mere acceptance of a qabuliat from the under-tenant) does not result in actual interference, his right to realise the rent is not suspended. Tested in the light of these principles, what is the position of the plaintiff in this case? He admits that even after the purchase of a share of the tenancy by the defendant, he has systematically collected rent from the tenants who hold under the howla and are in actual occupation of the land. The excuse which he offers for this interferences is that the tenants were unwilling to recognise any division of the howla and refused to pay him rent in respect of his legitimate share. This allegation, even if true, does not, in our opinion, afford sufficient justification for the Conduct of the plaintiff. He ought not to have collected rent in excass of what he knew to be his own share; he might either have brought actions against the tenants for recovery of the rent or he might have obtained, an authority from his co share the present appellant, to collect the rent jointly payable to himself and the latter. But, not only did he not take this precaution, he did what was undoubtedly worthy of blame. After he had collected the rent from the tenants, he never made an offer to the defendant to give her the money collected in excess of his own share. In our opinion, this conduct of the plaintiff, extending over four years and relating, as it does admittedly, to a substantial share of the rent actually recoverable from the tenants of the howla, does amount-to eviction within the meaning of the rule as laid down in the cases to which, we have just referred. The plaintiff is thus not entitled to claim any portion of the rent. The second ground upon which, the judgment of the Court below has been attacked must consequently succeed.
5. The result is that this appeal is allowed, the decrees of the Courts below set aside, and the suit dismissed with costs in all the Courts.