Agarwala, C.J. -
(1.) This appeal under the Letters Patent is by the defts. & arises out of a suit for recovery of produce rent for the years 1350-1351 fasli, in respect of plots 327 & 328. The defence was that the defts' holding consisted of three plots 326, 327, & 328, but that the plffs. had dispossessed the defts. from plot 326 by executing a patta in favour of defts' under-raiyat & realising rent from the latter. The first Court found that plot 326 formed no part of the defts' holding, &, alternatively, that the defts. were not entitled to suspension of the rent because the rent was not indivisible. The suit was, therefore, decreed, but not at the rate claimed by the plffs. In appeal by the defts. the appellate Court admitted additional evidence in the form of the survey khatian & held that plot 326 is a part of the defts' holding. The appellate Court dismissed the suit holding that the defts. since they were dispossessed from plot 326 were entitled to suspension of rent. The plffs. appealed to this Court, The appeal was heard by Ray J. who set aside the decision of the appellate Court & restored that of the Munsif. Ray, J. accepted the finding of the appellate Court that the defts. had been dispossessed from plot No. 326, but held that in the case of a holding held on produce rent, the deft, is not entitled to suspension of rent if he is dispossessed from a part of the holding. The learned Judge was of Opinion that the question had been set at rest by the decision of the Privy Council in 'Katyayani Debi v. Udoy Kumar Das', 52 IA 160 that the decisions of this Court Sn 'Sham Narayan Singh v. Chandra Sekhar Prasad', 36 IC 528, & 'Bhuneshwar Nath v, Gudar Nath', 17 PLT 356, were not applicable as in those cases the holdings were held on a lump sum cash rental.
(2.) The right of a tenant to suspension of rent in certain circumstances, when his landlord has failed to deliver to him possession of the entirety of the demised land, or dispossessed him from a portion of it, has been recognised & enforced in Bengal & Bihar for almost eighty years since the decision of Sir Barnes Peacock, C. J., in 'Gopanund Jha v. Lalla Gobind Pershad', 12 WR 109.
(3.) In England the rule appears to be well established that, where lands are let at as entire rent, & the lessee has been unable to obtain possession of some part of the land demised owing to the lessor's default, the lessee is entitled to suspension of payment of the whole rent, See 'Neale v. Mackenzie', (1836) 1 M & W 747; 'Holgate v. Kay', (1844) 1 Car & K. 341; and 'Watson v. Ward', (1853) 8 Ex. 335. Where, however, land is let at so much per acre, & the lessee is able to obtain possession of only a portion of it, he is not entitled to total suspension of rent but to an apportionment. With regard to eviction of the lessee by the lessor from a portion of the land, the English Common Law appears to make no distinction between a case where the rent is a lump sum & a case where it is at a certain rate per acre or bigha, the principle being in such cases that the rent issues from every part of the land demised & that the landlord cannot apportion his own wrong. I have been unable to find any statement of the reason for this difference between the failure of the landlord to deliver possession to the lessee of a part of the demised lands & eviction of the lessee by a lessor from a part of the demised lands after the lessee has entered into possession. There is, however this difference between the two cases which is noticeable. In a case where the lessee is unable to obtain possession of the entirety of the lands demised, it is open to him to refuse to take possession of the remainder. & avail himself of other remedies which the law provides, such as, repudiation of the contract & : damages for its breach or specific performance of it. In a case, however, where he has been evicted by the lessor from a part of the demised land after taking possession, the circumstances may be such as to render it impracticable for him to repudiate the contract altogether, for he may have effected improvements & spent money on the property. If this be the reason why a lessee is entitled to suspension of rent in a case where he has been evicted by the landlord after obtaining possession of the demised land, it is obvious that there is no justification for drawing any distinction between land leased at an entire rent & land leased at so much per acre or bigha.;