Basantilal Marwary vs Thakur Jamuna Prasad Singh

Agarwala, J.—This second appeal by the defendant arises out of a suit for recovery of rent of a sub-tenure for the last quarter of 1344 and the year 1345 Fasli. The rent of the sub-tenure is Rs, 302 a year. The defendant pleaded that he had been dispossessed of a portion of the tenure by the plaintiff. It appears that the plaintiff realised rent for the period in suit in respect of plot No. 688 of Khata No. 35 from the tenant in possession. At the time when the sub-tenure was created no rent had been assessed in respect of this plot. Since then, however, the defendant has settled it with a tenant at the rate of Rs. 3-12-0 per annum. The first Court was not satisfied that the defendant was entitled to realise rent in respect of this plot under the terms of his lease, or that if he was so entitled, he had not in fact realised it. The appellate Court held that the plaintiff had in fact realised Rs. 5 in respect of plot No. 688 for the period in suit and that it was the defendant who was entitled to this rent.

The appellate Court, however, held that the plaintiff had realised this rent inadvertently, that is to say, that he realised it under a mistake, and that the plaintiff did not intend to dispossess the defendant from any part of the sub-tenure. Accordingly the plaintiff''s suit has been decreed subject to the plaintiff refunding to the defendant Rs. 5 which he has realised.

In appeal it is contended that as the rent for the sub-tenure was a lump sum the defendant is entitled to suspension of the rent in its entirety.

Reference was made to the decision of the Privy Council in AIR 1925 97 (Privy Council) and to the decisions of this Court reported in Deoki Kuer v. Shiva Prasad Singh AIR 1936 Pat. 356, Dalip Narayan Singh v. Suraj Narayan AIR 1935 Pat. 38, Bhuneshwar Nath v. Gudur Nath (35) 17 P.L.T. 356, Rameshwar Lal v. Butto Krishto Rai AIR 1934 Pat. 653, and to the decision in Sajjad Ahamad Choudhuri and Another Vs. Trailakya Nath Choudhuri and Others, On the other hand in Hira Lal Singh v. Rinkauri Singh AIR 1934 Pat. 75, a Division Bench of this Court held that mere dispossession of the tenant from part of the demised premises is not sufficient to justify a total suspension of rent, but that in order to apply the doctrine of suspension it must be proved that the landlord deliberately and intentionally evicted the tenant from a part of the demised premises.

This is in accordance with the decision in Henderson v. Mears (1859) 28 L.J.Q.B. 305. The facts of that case were that the defendant being a tenant of certain apartments belonging to the plaintiff, left them and put K into possession, for the purpose of taking care of and letting them. The plaintiff turned K out by force and afterwards brought an action for rent. The defendant contested the action on the ground that there had been an eviction. The plaintiff, however, alleged that he turned K out because he was not a proper person to be in the rooms and because he had misconducted himself. The Judge directed the jury that the question was whether the trespass upon K was committed merely for the purpose of expelling him from the house or whether it was for the purpose of depriving the defendant of his possession and held that it was a right question. In appeal it was held that there was no misdirection.

On the finding of fact in the present case that the plaintiff realised the rent of plot No. 688 by mistake it must be that his purpose was not to evict the defendant and that his action, therefore does not entitle the defendant to a suspension of the rent of the sub-tenure.

The appeal is accordingly dismissed. In the circumstances, however, as this litigation has been occasioned by the plaintiff''s mistake it is only right that the parties should bear their own costs throughout.