KUMAR KALANAND SINGH Vs. BIBI JARAO KUMARI

JUDGEMENT

(1.) This is an appeal on behalf of the defendants in a suit for recovery of arrears of rent of a dar-patni tenure. The rent is claimed in respect of three years from the 13th April 1904 to the 13th April 1907, at the rate of Rs. 3,416 a year, with cesses at the annual rate of Rs. 316-9-0. The Subordinate Judge has decreed this claim in full. Upon the present appeal, that decree has been assailed on three grounds, namely, first that as the defendants made payments of patni rent to save the superior tenure from sale under Section 13, Clause (4), of Regulation VIII of 1819, the sum claimed by the plaintiff ought to be set-off against the sum so paid, with the result that the suit should be dismissed in its entirety; secondly, that the claim in respect of the period from the 14th May 1904 to the 16th September 1905 ought to be disallowed, because the defendants were kept out of possession of the property by reason of the unlawful conduct of the plaintiffs themselves; and thirdly, that credit ought to have been allowed for two payments of Rs. 600 and Rs. 2,000 respectively.

(2.) In support of the first contention, our attention has been invited to the fact that on the 17th November 1905 and 15th May 1907, the defendants paid Rs. 7,927 and Rs. 17,707, respectively, in respect of the rent payable by the plaintiffs patnidars to their superior landlord. With reference to these payments, it has been argued that as the defendants have paid, on account of the plaintiffs, a sum far in excess of the amount now sought to be recovered as arrears of rent, the claim ought to be disallowed in its entirety. In our opinion, there is no foundation for this contention. Under Section 13 of Regulation VIII of 1819, an under-tenant is entitled to make a payment to save the patni tenure from sale with a view to the preservation of his own interest, and when he does so, his position is regulated by the provisions of Clauses 3 and 4 of the section. If the amount lodged is rent due to the patnidar from the under-tenant, the fact has to be stated at the time of the deposit, and the amount is directed to be carried to the account of the tenant lodging it, to be deducted from any claim of rent that may at the time be pending or be thereafter brought forward against him by the proprietor of the advertised tenure on account of the year or months for which the notice of sale may have been published. If, on the other hand, the amount has been lodged by an undertenant, who has already paid the whole of the rent due from himself, the amount lodged is an advance from private funds and not a disbursement on account of the rent. In such a contingency, it is expressly directed that the deposit shall not be carried to credit in or set against future demands for rent, but shall be considered as a loan made to the proprietor of the tenure preserved from sale by such means, and the taluk so preserved becomes security to the person making the advance, who is considered to have a lien thereon in the same manner as if the loan had been made upon mortgage; and he further becomes entitled, on applying for the same, to obtain immediate possession of the tenure of the defaulter in order to recover the amount so advanced from any profits belonging thereto. The possession thus obtained is to continue till the debt has been re-paid, and the defaulter is free, by payment of whatever is due, to recover his tenure from the hands of the person who has made the advance and entered into possession in consequence. In the case before us, the appellants pursued the latter course. They stated specifically, when they made the deposits, that the rent due from them had been paid in full and that what was lodged was an advance from private funds. Upon this representation deliberately made, they obtained possession of the patni taluk and have continued in possession up to the present moment. As the appellants are dar- patnidars of a portion only of the lands comprised in the patni tenure, the result has been that, although the landlords are entitled to realise rent from them only in respect of the dar- patni lands, they are now in possession of the entire land of the patni taluk. The appellants have argued before us that upon the facts now disclosed, it is obvious that the statement made on their behalf at the time of the deposits was untrue in part at least, that a portion of the rent payable by them was in arrears, and that consequently they should have proceeded under Clause (3) of Section 13 of the Regulation. It has been contended that inasmuch as if they had done so, they would have been entitled to deduct the amount deposited from the claim of the rent then pending or there after brought forward against them by the patnidar, they should be placed in the same position now. In our opinion, it is not open to them to resile from the position they designedly took up at the time they made the deposits. In fact, the contention of the appellants is manifestly unreasonable. They have, under the colour of Clause (4) of Section 13 of Regulation VIII of 1819, taken possession of the tenure and enjoyed its profits. They do not offer to render an account in the present litigation of the sums collected by them during their possession of the tenure; they merely ask that the amount sought to be recovered by the plaintiffs, may be set off against the amount deposited by them, with the result that the claim may be dismissed in its entirety, while the plaintiffs are to be driven to a separate suit to determine whether the defendants have or have not, by means of their possession of the putni tenure, already realised the amount advanced by them. This argument has only to be stated to be repudiated as wholly unsound. It is plain that the defendants are not entitled to plead at the stage that Clause (4) of Section 13 of the Patni Regulation has no application to their case, and under that clause, they cannot obviously claim a set off, The first contention of the appellants, therefore, fails.

(3.) In support of the second contention it has been argued that the appellants were deprived of possession of the dar patni tenure by reason of the fraudulent conduct of the plaintiffs, and that, consequently, the latter have lost their claim to rent during the period of dispossession, as ruled in Kadumbinee Dossia v. Kasheenauth Biswas 13 W.R. 338 and Chandra Kanta Das v. Rama Nath Barman 11 C.L.J. 591 : 6 Ind. Cas.478. The facts, in so far as they are material for the decision of this question, are indisputable. The plaintiffs wilfully defaulted to pay patni rent to the superior zemindar. The zemindar thereupon proceeded to bring the tenure to sale under Regulation VIII of 1819. At the sale, the plaintiffs themselves purchased the tenure in the name of one Hukum Chand Boid on the 14th May 1904. The nominal purchaser obtained delivery of the property through the Collectorate. He professed to be a stranger to the proceedings and claimed to have acquired the patni free of the interest of the dar-patnidar. He was, consequently, placed in possession and continued in occupation of the dar-patni till the 16th September 1905, when he was ousted by virtue of a decree in a suit commenced by the preset appellants for reversal of the patni sale. In that suit, it was declared on the 24th August 1905 that Hukam Chand Boid was a nominal purchaser for the benefit of the plaintiffs; in other words, that the defaulter had purchased the tenure in contravention of the express provisions of Section 9 of Regulation VIII of 1819. There can be no room for controversy that the plaintiffs as purchasers under Regulation VIII of 1819 were not entitled to annul the dar- patni tenure created by themselves or their predecessors; they could not take recourse to the provisions of the Patni Regulation to enable them to effectuate a fraud upon the under-tenure holders. In support of this proposition, reference may be made to the cases of Nawab Sidhee Nuzur Ali Khan v. Oojoodhyaram Khan 10 M.I.A. 540 : 5 W.R. (P.C.) 83; Mahomet Nasseer v. Kishen Mohun W.R.F.B. 92; Gouree Kamul v. Raj Kishen 5 W.R. 106; Madhub v. Joy Kumaree 5 W.R. 201; Gouree Kamul v. Raj Kristo 14 W.R. 369; Koylash Chunder Banerjee v. Kalee Prosunno Chowdhry 16 W.R. 80; Srinath Ghose v. Haro Nath Dutt 9 B.L.R. 220 : 18 W.R. 240; Kishore Chunder Sen v. Kally Kinkur 20 W.R. 333; Jatendra Mohun Tagore v. Debendra Monee 2 C.L.R. 419; Ram Lall v. Debendra 8 C. 8; Fakir Chander v. Ram Kumar 31 C. 909 (P.C.) : 8 C.W.N. 721 : 1 A.L.J. 420 : 6 Bom. L.R. 741 : 31 I.A. 195 and arendra Lal Chowdhury v. Salimullah 12 C.L.J. 336 : 7 Ind. Cas. 21. The Court will in a matter of this description strip off all disguises and look at the transaction in its naked reality. What then is the true character of the events in the case before us? The plaintiffs deliberately brought the patni tenure to sale and, in defiance of statutory provisions, purchased the property them-selves; they then took possession of the dar-patni tenure in the name of the ostensible purchaser. The whole transaction was a flagrant abuse of the provisions of the Regulation, and was nothing less than a device, carefully planned and successfully carried out, to dispossess the under-tenure- holders. In essence, therefore, the plaintiff, under colour of law, evicted the defendants. The principle that the landlord who has evicted his tenant is not entitled to claim rent from him in respect of the period of eviction is, consequently, applicable. It cannot be disputed, in view of the decisions analysed in the cases of Chandra Kant Das v. Ramanath Barman 11 C.L.J. 591 : 6 Ind. Cas.478 and Rasseswari v. Sourendra 11 C.L.J. 601 : 5 Ind. Cas. 105 that the lessee is not liable for rent accruing due after he has been evicted from the premises by the landlord so long as the eviction continues. It is further clear, as laid down in the cases of Upton v. Towrnend 17 C.B. 30 : 25 L.J.C.P. 44 : 1 Jur. (N.S.) 1089 : 4 W.R. 56 and Hoymobutty Dossee v. Sree Kissen Nundy 4 W.R. 58 that to constitute an eviction within the meaning of this rule, it is not necessary that there should be an actual physical expulsion from any part of the premises; any act of a permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises or any part thereof, will operate as an eviction. There is no controversy in the present case that, as the result of the fraudulent conduct of the plaintiffs, the defendants were actually precluded from enjoying possession of the dar-patni tenure from the 14th May 1901 to the 15th September 1905; they are accordingly, prima facie, not liable for the rent of this period. The learned Vakil for the respondents has, however, very earnestly appealed to us to show some consideration to the plaintiffs. He has pointed out that in the suit commenced by the appellants to set aside the patni sale, they obtained a decree for recovery of possession with mesne profits; and he has argued that as they have obtained a decree for mesne profits, they should, in justice, be made liable for the rent payable. In our opinion, there is no foundation for this contention. As was pointed out in the cases of Kadambini Dassee v. Kashi Nath Biswas 13 W.R. 338 and Chandra Kanta Das v. Rama Nath Barman 11 C.L.J. 591 : 6 Ind. Cas.478 the fact that the evicted tenant has obtained a decree for mesne profits does not revive the claim for rent which was extinguished by reason of the misconduct of the landlord; the decree for mesne profits in his favour does not necessarily restore him to all the advantages he would have enjoyed, had his possession not been illegally disturbed: Gobind Chund v. Mun Mohanjha 14 W.R. 43. We may further observe that it might possibly have been open to the present respondents, when the mesne profits were assessed, to contend that profits ought to be calculated, not at the gross collections from the tenants, but at that sum reduced by the rent payable to the superior landlord. But no objection of this kind was taken in those proceedings, and the judgment of the Subordinate Judge upon the question of mesne profits was affirmed by this Court on the 13th March 1912. It is, therefore, not open to us to re-investigate that matter; and if we were now to accede to the contention of the respondents, the result would be that they would now be allowed credit for a sum which they might possibly have claimed in the proceedings for assessment of mesne profits. This clearly is not permissible; and in so far as the claim for rent is concerned, it is plainly barred upon the principle already explained. The second ground, therefore, must prevail.