Judgement

Consolidated Appeal (No. 97 of 1929) from two decrees of the High Court (February 10, 1927), varying two decrees of the Additional Subordinate Judge of Khulna (May 13, 1925), and petition by the appellant in the second of the above consolidated appeals to vary an Order in Council dated December 17, 1924.

The two suits out of which the consolidated appeals arose were suits for arrears of rent and cesses, including inter it, for the same tenures, but for different periods.

The decree of the High Court, which varied the decree of the trial judge, gave effect to the Order in Council of December 17, 1924, made in a previous appeal relating to the same tenure.

Katyayani Debi Chowdhurani, who was the appellant in the second of the present consolidated appeals and had been an appellant in the previous appeal, in which the respondents were the same as in the present appeal, petitioned that the Order in Council dated December 17, 1924, should be varied, on the ground that it did not give effect to the judgment of the Board delivered on December 11, 1924.

The facts appear from the judgment of the Judicial Committee.

The petition and the present appeal were heard together.

1931. Jan. 16. Wallach for the petitioner and the appellants.

[Reference was made to Ex parte Lajwanti . (( 1925) L. R. 52 I. A. 211.)] The respondents did not appear.

Feb. 16. The judgment of their Lordships was delivered by

LORD ATKIN. This is an appeal by the defendant from a judgment of the High Court of Calcutta in a suit brought by the plaintiff to recover rent. There is also before their Lordships a petition by the defendant in two former appeals before this Board to reform the Order in Council then made, on the ground that it does not give effect to the intention of their Lordships as expressed in their judgment. These are the latest incidents in a series of legal proceedings which, owing mainly to the fault of the parties, have not had entirely satisfactory results.

It will be necessary to state in outline so much of the previous history of the case as must be known to elucidate the present issue between the parties. In 1878 the predecessor in title to the plaintiff granted a lease to the predecessor of the defendant of a considerable portion of land estimated at about 4000 bighas. The land was mainly uncultivated ; the tenant was to bring it into cultivation within three years. For that period he was to hold it rent free ; afterwards he was to pay 13 annas per bigha rent. It was a permanent transferable tenure at a fixed rent. The landlord purported to give possession to the tenant of the whole area as defined in the lease. Part of the area was said to include the mauza Daskati; but though the tenant took possession of the whole mauza, 61 acres was not the property of the lessor but of another owner, one Hari Charan Chowdhury. In 1888 Chowdhury dispossessed the then tenant not only of the 61 acres, but also of a much larger tract to which Chowdhury had no title. In September, 1917, the plaintiff, the then lessor, brought a suit for rent against the defendant Katyayani Debi, the then lessee, for rent for the year 1915-16, and in June, 1918, he brought a similar suit for the rent for the year 1916-17. The defendant had acquired the tenure as a purchaser at a sale in execution of a decree for arrears of rent against a former tenant. She was the wife of Hari Charan Chowdhury, who at the time when she had bought in 1894, still was in possession both of the 61 acres and the larger tract referred to. Her defence in both suits was that she was entitled to a suspension of all the rent, seeing that she had not received possession of the land included in the tenure, but possessed by her husband, and that she was entitled at any rate to an abatement of the rent proportionate to the land included in the tenure, but possessed by her husband. Both suits were tried together. The Subordinate Judge refused total suspension, but gave her the abatement asked for. The t