JUDGMENT
1. The predecessor-in-title of the plaintiff leased 100 bighas of laud within certain boundaries to defendant No. I in 1308, and established a hat on some portion of the demised land and realised from the Government the rent for a portion of the said land on which the salt office was situated. Defendant No. 1, therefore, did not get possession of the lands occupied by the hat office and the had, but he continued paying the full rent and when in 1818 the plaintiff investigated the assets of the lessor’s interests in view of purchasing’ the same defendant No. 1 made a declaration that he held 100 big has of land at a rental of Rs. 100. The plaintiff then purchased the lessor’s interest and brought the present suit for arrears of rent from 1818 to 1816 against defendants Nos. 1 and 2. Defendant No. 1 did not appear but defendant No. 2 pleaded that as he was dispossessed of the lands covered by the salt office and the hat, the plaintiff was not entitled to any rent.
2. The Courts below have held that the salt office and the hat lands were parts of the lease-hold lands of the defendant and he had been dispossessed of the same, but they held that the defendant was not entitled to a suspension of the entire rent but to an abatement and as the plaintiff gets Rs. 5 from Government as the rent of the salt office and as there was no evidence of the area or the assets of the hat lands, gave an abatement of Rs. 5 per annum only.
3. It is contended in second appeal before us that upon the findings as to dispossession no decree should have been passed.
4. It has been held in a series of cases in this Court that when the landlord dispossesses his tenant from a part of his leasehold lands, the landlord’s right to claim rent is suspended in respect of the entire lease-hold. See the cases of Dhunput Singh v. Mahomed Kazim Ispahain 24 C. 296; Rani Lalita Sundari v. Rani Surnomoyee Dasi 5 C.W.N. 353; Rai Charan Sar Mazumdar v. The Administrator-General of Bengal 2 Ind. Cas. 169 13 C.W.N. 853 : 9 C.L.J. 578 : 36 C. C. 856; Chandra Kanta Das v. Ramanath Barman 6 Ind. Cas. 478 : 11 C.L.J. 591; Ashutosh Dhar v. Joy Lal Sardar 18 Ind. Cas. 621 : 17 C.L.J. 50 and Godai Molla v. Aminuddi Howladar 21 Ind. Cas. 957 : 18 C.L.J. 509.
5. There are some cases, however, in which the Court has granted an apportionment of rent instead of ordering entire suspension.
6. The case of Kali Pramnna Khasnabish v. Mathura Nath Sen 34 C. 191 is not in point, as there the lower Appellate Court found as a matter of fact that the dispossession was not by the landlord. The decree, therefore, for the proportionate rents of the lands actually held did not sound any note of dissent from the general principle established in the cases first enumerated. The case of Annada Prosad Mukhopadhya v. Mathura Nath Nag 2 Ind. Cas. 123 : 13 C.W.N. 702 : 9 C.L.J. 58 bears a closer resemblance to the present case.
7. The lower Appellate Court in that case found that the plaintiff had dispossessed the defendant of about half of the land demised, but the learned Judges repelled the plea of suspension and allowed an abatement. In arriving at this conclusion they held there had been no eviction by the landlord, as the tenant had never obtained actual possession and had paid some rent after the grant of the lease to a third party which resulted in his dispossession. It is true that the tenant was found to be in possession of the 800 bighas given as the estimated area of lands in the lease, but on the findings the laud actually demised was over 1500 bighas.
8. In the present case also the tenant had not been put in actual possession of the lands covered by the salt office and the hat and the dispossession was more or less constructive, and the predecessor of defendant paid full rent notwithstanding that the plaintiff’s predecessor was in khas possession of the said lands. The resemblance of the two cases, therefore, is very close and under the circumstances of the present case we are inclined to take the same course.
9. The defendants, therefore, are entitled to a deduction of rent in respect of the hat lands also, but there is no evidence of their area. In fact the plaintiff excluded that land and the salt-gola lands from the scope of the suit and we were inclined to make a remand for the purpose of ascertaining the actual rea of these lands, That is, however, un-necessary, as the learned Vakil for the appellant has agreed that, for the purpose of the present case we should make a deduction of Rs. 25 for the excluded lauds and award rent at the rate of Rs. 75 per annum. It is clearly understood, however, that this will not affect the right of either party to workout his rights in future in due course of law on the findings arrived at in this case. Each party will bear its own costs in all Courts.
