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 ly