Judgement

Consolidated Appeals (Nos. 134 and 135 of 1923) from a judgment and two decrees of the High Court (February 27, 1922) varying two decrees of the Subordinate Judge of Kulna (July 4).

The consolidated appeals arose out of two suits brought by the respondent in 1918 against the appellant to recover arrears of rent for the years 1916- 1917, 1917- 1918 ; the defendant-appellant pleaded, among other things, that she was entitled to an abatement of the rent on the ground that she was out of possession of certain lands included in the tenancy agreement. The defendant-appellant had purchased the tenure in 1894 at an auction sale under the Bengal Tenancy Act, 1885, ss. 65, 198, in execution of a decree for arrears of rent.

The facts material to the appeals appear from the judgment of the Judicial Committee.

The Subordinate Judge allowed the abatement of rent claimed.

An appeal to the High Court was heard by Woodroffe and Cuming JJ., who delivered judgment on May 31, 1891. The former learned judge held that the defendant was entitled to the abatement claimed, the latter that she was not so entitled. The decrees of the Subordinate Judge were therefore confirmed under s. 98, sub-s.2, of the Code of Civil Procedure, 1908. The appeal is reported at I. L. R. 49 C. 257, and the facts of the case are there fully stated.

An appeal by the plaintiff under cl. 15 of the Letters Patent was heard by Mookerjee, Newbould, and Pearson JJ., who by judgments delivered on February 27, 1922, held that the defendant was not entitled to the abatement claimed. The appeal under the Letters Patent is reported at I. L. R. 49 C. 948.

1924. Nov. 3, 4. De Gruyther K.C., and Abdul Majid for the appellant. The appellant is entitled to abatement in respect of the lands of which she has not obtained possession; she was entitled to have possession of the whole area put up for sale under the decree. Upon the sale the lessor in effect impliedly warranted that the tenure was as created. Having regard to the terms of the kabuliyat the only obligation upon the tenant was to give notice of the trespassers possession to the lessor to eject the trespasser, and that was done. Further, there could be no arrears of rent until the actual area of which possession was given had been ascertained.

Dunne K.C. and Dube for the respondents. The appellant was not entitled to an abatement in respect of the land adversely held by her husband. The rights acquired by him did not affect the lessors rights. The appellant could have ejected the trespasser; even if he had acquired a title at the date of the purchase the appellant could have annulled the encumbrance under s. 167. The law is well established by decisions in India Goluck Monet Dosee v. Huro Chunder Ghose (( 1867) 8 Suth. W. R. 62.); Womesh Chunder Goopto v. Raj Narain Roy (( 1868) 10 Suth. W. R. 15.); Khantomoni Dasi v. Rijoy Chand Mdhatab (( 1892) I. L. R. 19.C. 787.); Karmi Khan v. Brojo Nath Das (( 1894) I. L. R. 22 C. 244, 251.); Nuffer Chand Pal Chowdhry v. Rajendra Lal Goswami . (( 1897) I. L. R. 25 C. 167.) The judgment of the Board in Bipradas Pal Chowdhry v. Kamini Kumar Lahiri (( 1917) L. R. 48 I. A. 499.) recognizes that there is a current of authority in India, though no decision of the question was given.

De Gruyther K.C, in reply. Cases arising out of sales for revenue are not applicable. Adverse possession in a trespasser is not a "right or interest created by the tenant" within the meaning of s. 161. The appellant is entitled to succeed having regard to the terms of the kabuliyat, even if the cases cited would be applicable apart from its terms.

Dec. 11. The judgment of their Lordships was delivered by

LORD SALVESEN, This is an appeal from the High Court of Judicature in Bengal in two actions for arrears of rent brought by the respondent against the appellant. The respondent is the successor in title to a certain Tagore, who, on November 27, 1878, granted a reclamation lease of certain lands which were then lying waste and in a state of jungle, at a rate which fell to be calculated at thirteen annas per bigha of the area embraced in the lease. Since the date of the lease the greater part of the area has been brought under cultivation and has been in the possession of several successive tenants. The appellant acquired the tenants rights in the lands as a purchaser at a sale in execution of a decree for arrears of rent due by the prior tenant.

For the purposes of this appeal, in which a single question of importance has been raised, it is only necessary to consider the state of matters at the time of the appellants purchase, which took place in 1894. The appellant then obtained possession of the whole lands within the boundaries mentioned in the lease with two exceptions (1.) a small area of sixty-one acres or thereby to which her husband had established a paramount title dating from 1875 against the original lessor, and (2.) a much larger area of which her husband had taken possession without any title some six years previously and of which he had continued to hold possession, notwithstanding certain efforts by the previous tenant to eject him.

From 1894 until the first of the two suits now under con sideration was raised in 1917 the appellant paid without objection the rent of Rs.4300, which had been fixed as between the prior lessee and the then landlord to be the rent due under the lease in question. In her defence to this suit the appellant contended that she was entitled to an abatement of rent in respect of such portions of the area embraced within the boundaries of the lease of which she was not actually in possession. It was conceded that she is entitled to an abatement of rent applicable to the sixty-one acres above referred to, and this has been allowed by the judgment under appeal. The controversy that still remains to be determined is whether she is entitled to a corresponding abatement in respect of the much larger area which her husband continued to possess and which is now possessed by his representatives.

The lease, which is evidenced by the kabuliyat of November 27, 1878, is of a kind which is familiar in the province of Bengal. As it expressly bears it is permanent and transferable and at a fixed rent. The tenant under such a lease virtually becomes the proprietor of the surface of the lands subject only to the payment of the stipulated rent, and the lessor and succeeding landlords have no interest in the lands except in so far as they form a security for payment of the rent. When the rent falls into arrear the landlords only remedy is to bring the tenure to sale by public auction on the execution of a decree for payment of rent. The purchaser of the tenure, as has now been settled by a long series of authorities in the Indian Courts, which are enumerated in the learned and exhaustive judgment of Mookerjee J., acquires title to the lands on the terms of the original lease unaffected by any encumbrances created by previous tenants. An encumbrance is defined by s. 161 of the Bengal Tenancy Act, 1885, as any "right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein, and not being a protected interest." There is no question in this case of any protected interest, but only of such right as the appellants late husband may have acquired in respect of his possession of a portion of the lands embraced in the lease for a period exceeding twelve years.

At the date when the appellant acquired the lease by purchase only six years of adverse possession by her husband had run against the former tenant. It is admitted that she could immediately have put an end to this tortious possession by her husband on her purchasing the tenure. She did not do so, but allowed him to continue in possession, so that it may be assumed that he and his heirs have acquired by limitation an absolute right as against the present tenant to continue in possession.

The case for the appellant is that this right which her husband has acquired against her is also good against the respondent as in right of the landlords interest under the lease. It was argued that the lessor had a title to eject the trespasser and that, if he did not do so, the trespasser obtained a title by limitation against him as well as against the tenant, and that, as the latter is now deprived of the possession of the lands, she is entitled, in a question with the landlord, to an abatement of rent. There is a long and consistent body of authority to the opposite effect in India, and although the matter has not been made the subject of direct decision by this Board their Lordships see no ground for doubting the soundness of the decisions referred to in the judgment of the High Court.

The duty of a tenant under a perpetual tenure such as the one in question is to protect himself against illegal encroachments by others on the lands of which he has the exclusive possession. If he fails to do so he cannot prejudice the landlords claim for rent. The considerations which appear to their Lordships to be conclusive are those stated by Peacock C.J. in Womesh Chunder Goopto v. Raj Narain Roy (10 Suth. W. R. 15.), and which are quoted in the judgment of the High Court. It has also been pointed out in other judgments that the landlord cannot in the ordinary case know whether the possession of a particular area of land is adverse to the tenant or has taken place with his consent. He could not therefore safely sue an action at his own hand for ejectment of a trespasser, as he might always be met with the objection that the apparent trespass was acquiesced in by the tenant, who can deal with the lands as he pleases.

On the assumption that the High Court has correctly stated the law applicable, the appellant nevertheless maintained that, under the terms of the particular kabuliyat, she was entitled to succeed. The clause quoted is in the following terms "Should any dispute about the boundaries given below arise with any malik we will report it to you and you will investigate it. If through neglect we lose hold of any land, we will be answerable and will compensate you for the same."

The latter part of the clause, which in their Lordships judgment is directly applicable to the present case, is adverse to the appellants contention. It was entirely through her own neglect that she lost possession of the lands now occupied for more than twelve years of her own tenancy by her husband. So far as these lands were concerned he was a mere trespasser, and it is of no consequence whether a trespasser is a malik or holds some inferior position. With regard to the earlier part of the clause it may be held to cover the dispute with regard to the sixty-one acres of land that have been duly investigated and in respect of which an abatement of rent corresponding to the area has been made. The further contention (which was but faintly maintained) that as this plot of land was originally embraced within the boundaries of the tenure and that the appellant has not been put in possession of same, she is entitled to suspend payment of the rent of the remaining area, was decided adversely to the appellant in all the lower Courts, and their Lordships see no reason for differing from their judgments. The doctrine of suspension of payment of rent, where the tenant has not been put in possession of part of the subject leased, has been applied where the rent was a lump rent for the whole land leased treated as an indivisible subject. It has no application to a case where the stipulated rent is so much per acre or bigha.

So far their Lordships are in entire agreement with the judgment of the High Court, and this is sufficient for the disposal of the case.

An alternative ground of judgment is based upon a settlement which took place between the former landlord and tenants of the lands in question, under which a compromise was arrived at to the effect that the tenants should not be entitled to apply for abatement of rent on any ground whatever in respect of the area of 4300 bighas then found to be the measurement in their occupation. Their Lordships are not, at present, satisfied that such an agreement between the lessor and the former tenants would necessarily be binding on a purchaser of the tenure at an auction sale, but, as the point is unnecessary to the decision of the case, they refrain from expressing any opinion upon it.

Their Lordships will, therefore, humbly advise His Majesty that the appeal should be dismissed with costs.