Babu Jagat Narain Singh and Others vs Tulsi Chamar and Another and Jugeshwar Prasad Sinha and Another

Kulwant Sahay, J.—This is an appeal by the plaintiffs and it arises out of a suit for apportionment of rent and for recovery of arrears of rent for the years 1325 to the 12 annas last of 1328. The original holding of defendants consisted of 2 bighas 11 kathas and 1 dhur with a rental of Rs. 13-3 6. The plaintiffs'' case was that out of this area the tenant-defendants surrendered 8 kathas in favour of the plaintiffs, and they remained in possession of the remainder. The plaintiffs,'' therefore, alleged that they were entitled to recover Rs. ll-7-7� with cesses as the rent for the land now held by the tenant-defendants. They accordingly brought the present suit for apportionment of the rent and for recovery of arrears.

The defence of the tenant-defendants was that there was no surrender but forcible dispossession by the plaintiffs as regards 8 kathas out of the holding, and they pleaded that so long as the dispossession lasted there was a suspension of the entire rent and the plaintiffs were not entitled to recover any rent so long as they kept the defendants out of possession of the 8 kathas.

The learned Munsif held that the story of surrender had not been proved and that the defendants'' story of forcible dispossession had also not been proved. The plaintiffs were, however, admittedly in possession of 8 kathas and the tenants continued in possession of the remaining area. The-Munsif was of opinion that it would be highly unfair and inequitable to hold that the tenants should possess the remaining land and enjoy the usufructs thereof and still withhold the rent therefor. He accordingly made a decree apportioning the rent and making a decree for the years in suit.

On appeal, the learned Subordinate Judge has set aside the decree of the Munsif and has held that so long as the dispossession lasts the plaintiffs are not entitled to recover any rent. He has accordingly dismissed the suit. The plaintiffs appeal against this decision.

A number of rulings were cited on behalf of the defendants-respondents to the effect that when there is a dispossession by the landlord either of the whole or of a portion of the holding, the tenant was entitled to withhold the entire rent so long as possession was not restored to the tenant. The proposition of law is not disputed on behalf of the appellants; but it is contended that under the facts of the present case the defendants are not entitled to withhold the entire rent. The contention is that the dispossession, according to the finding of the Munsif, took place, in 1915, and, therefore, a claim for possession by the tenant-defendants would be barred by two years'' limitation under Schedule III of the Bengal Tenancy Act, and the plaintiffs-cannot, therefore, be compelled to restore'' possession of the 8 kathas inasmuch as they have acquired an indefeasible title by lapse of time. The appellants contend that the holding of the defendants must, therefore be taken to consist of the area now in their possession, and a fair rent ought to be settled therefor.

There is some force in this contention, and it does appear inequitable, as observed by the Munsif, that the tenant should take no steps to recover possession of the portion of the holding from which he has been dispossessed, should retain possession of the remainder of the holding and yet should withhold the entire rent. The policy of the law, however, seems to be that a landlord is bound to keep his tenant in peaceful enjoyment and possession of the holding. If he disturbs the possession of the tenant he is not entitled to recover, rent from the tenant. The tenant''s claim for recovery of possession may be barred by lapse of time but he can still compel the landlord to restore possession of the holding or the portion thereof from which he has been dispossessed by the landlord by withholding payment of rent for the entire area. It is not necessary to refer to the reported cases where it has been held that a tenant is entitled to withhold payment of entire rent if he is dispossessed by the landlord from the whole or a portion of the holding; this proposition is admitted on behalf of the appellants and the only circumstance relied upon by them, viz., the fact of the tenants'' claim to recover possession being barred by limitation is not sufficient to entitle the plaintiffs-landlords to recover any portion of the rent. In my opinion, the decision of the learned Subordinate Judge is correct and must be affirmed. The appeal is dismissed with costs.