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1924 Supreme(SC) 77
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD DUNEDIN, LORD ATKINSON, MR. AMEER ALI, AND LORD SALVESEN.
KATYAYANI DEBI - Appellant
Versus
UDOY KUMAR DAS - Respondents
On appeal from the High Court at Calcutta.
Decided On : Dec. 11. 1924.
Solicitors for appellant:Watkins & Hunter, Solicitors for respondent: W. W. Box & Co.
A tenant under a perpetual tenure is responsible for protecting the land from encroachments; failure to do so, or loss of possession through neglect, does not entitle the tenant to an abatement of rent, as the landlord's right to rent remains unaffected by adverse possession.
Headnote:(A) Bengal Tenancy Act, 1885 - Section 161 - Encumbrance - Rent Abatement - Adverse Possession - A purchaser of a tenure at an auction sale in execution of a decree for arrears of rent acquires title on the terms of the original lease, unaffected by encumbrances created by previous tenants. An encumbrance is defined as any right or interest created by the tenant on his tenure or holding in limitation of his own interest, not being a protected interest. (Para 10)
(B) Landlord and Tenant - Duty of Tenant - The duty of a tenant under a perpetual tenure is to protect the land against illegal encroachments. Failure to do so does not prejudice the landlord's claim for rent. The landlord cannot be expected to know if possession of a particular area is adverse to the tenant or with the tenant's consent, and therefore cannot safely sue for ejectment of a trespasser. (Para 12)
(C) Lease Agreement - Terms of Kabuliyat - Where a lease agreement specifies that the tenant is answerable and shall compensate the landlord if land is lost through neglect, the tenant cannot claim abatement of rent for land lost due to such neglect. (Para 13)
(D) Rent Payment - Suspension - The doctrine of suspension of rent payment, applicable where a tenant is not put in possession of part of the leased subject, has no application in cases where the stipulated rent is calculated per unit of area, such as per acre or bigha. (Para 13)
Facts of the case:
A tenant purchased a tenure at an auction sale in execution of a decree for arrears of rent. A portion of the land was occupied by a third party who had taken possession without title and subsequently acquired absolute right by limitation. The tenant sought an abatement of rent for the area of which she was not in actual possession, arguing that the third party's title was also good against the landlord.
Findings of Court:
The court found that the tenant was not entitled to abatement for the land lost through her own neglect. The third party's adverse possession against the tenant did not affect the landlord's right to receive rent, and the specific terms of the lease agreement held the tenant liable for loss of land due to neglect.
Issues: Whether a tenant is entitled to an abatement of rent for land occupied by a trespasser who acquired title by adverse possession, and whether the terms of the lease agreement precluded such abatement.
Ratio Decidendi: A tenant under a perpetual tenure must protect the land from encroachments; failure to do so does not excuse the payment of rent to the landlord. If the lease agreement holds the tenant liable for loss of land due to neglect, the tenant remains responsible for the rent of that area regardless of the trespasser's status.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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property law
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landlord and tenant
- rent abatement
- perpetual tenure
- adverse possession
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landlord and tenant
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statutory law
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bengal tenancy act
- encumbrances
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bengal tenancy act
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practice and procedure
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execution of decree
- auction sale
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execution of decree
Judgement
Consolidated Appeals (Nos. 134 and 135 of 1923) from a judgment and two decrees of the High Court (February 27, 1922) varying two decrees of the Subordinate Judge of Kulna (July 4).
The consolidated appeals arose out of two suits brought by the respondent in 1918 against the appellant to recover arrears of rent for the years 1916- 1917, 1917- 1918 ; the defendant-appellant pleaded, among other things, that she was entitled to an abatement of the rent on the ground that she was out of possession of certain lands included in the tenancy agreement. The defendant-appellant had purchased the tenure in 1894 at an auction sale under the Bengal Tenancy Act, 1885, ss. 65, 198, in execution of a decree for arrears of rent.
The facts material to the appeals appear from the judgment of the Judicial Committee.
The Subordinate Judge allowed the abatement of rent claimed.
An appeal to the High Court was heard by Woodroffe and Cuming JJ., who delivered judgment on May 31, 1891. The former learned judge held that the defendant was entitled to the abatement claimed, the latter that she was not so entitled. The decrees of the Subordinate Judge were therefore confirmed under s. 98, sub-s.2, of the Code of Civil Procedure, 1908. The appeal is reported at I. L. R. 49 C. 257, and the facts of the case are there fully stated.
An appeal by the plaintiff under cl. 15 of the Letters Patent was heard by Mookerjee, Newbould, and Pearson JJ., who by judgments delivered on February 27, 1922, held that the defendant was not entitled to the abatement claimed. The appeal under the Letters Patent is reported at I. L. R. 49 C. 948.
1924. Nov. 3, 4. De Gruyther K.C., and Abdul Majid for the appellant. The appellant is entitled to abatement in respect of the lands of which she has not obtained possession; she was entitled to have possession of the whole area put up for sale under the decree. Upon the sale the lessor in effect impliedly warranted that the tenure was as created. Having regard to the terms of the kabuliyat the only obligation upon the tenant was to give notice of the trespassers possession to the lessor to eject the trespasser, and that was done. Further, there could be no arrears of rent until the actual area of which possession was given had been ascertained.
Dunne K.C. and Dube for the respondents. The appellant was not entitled to an abatement in respect of the land adversely held by her husband. The rights acquired by him did not affect the lessors rights. The appellant could have ejected the trespasser; even if he had acquired a title at the date of the purchase the appellant could have annulled the encumbrance under s. 167. The law is well established by decisions in India Goluck Monet Dosee v. Huro Chunder Ghose (( 1867) 8 Suth. W. R. 62.); Womesh Chunder Goopto v. Raj Narain Roy (( 1868) 10 Suth. W. R. 15.); Khantomoni Dasi v. Rijoy Chand Mdhatab (( 1892) I. L. R. 19.C. 787.); Karmi Khan v. Brojo Nath Das (( 1894) I. L. R. 22 C. 244, 251.); Nuffer Chand Pal Chowdhry v. Rajendra Lal Goswami . (( 1897) I. L. R. 25 C. 167.) The judgment of the Board in Bipradas Pal Chowdhry v. Kamini Kumar Lahiri (( 1917) L. R. 48 I. A. 499.) recognizes that there is a current of authority in India, though no decision of the question was given.
De Gruyther K.C, in reply. Cases arising out of sales for revenue are not applicable. Adverse possession in a trespasser is not a "right or interest created by the tenant" within the meaning of s. 161. The appellant is entitled to succeed having regard to the terms of the kabuliyat, even if the cases cited would be applicable apart from its terms.
Dec. 11. The judgment of their Lordships was delivered by
LORD SALVESEN, This is an appeal from the High Court of Judicature in Bengal in two actions for arrears of rent brought by the respondent against the appellant. The respondent is the successor in title to a certain Tagore, who, on November 27, 1878, granted a reclamation lease of certain lands which were then
