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1942 Supreme(SC) 32
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD THANKERTON, SIR GEORGE RANKIN, AND SIR MADHAVAN NAIR.
RAM LAL DUTT SARKAR - Appellant
Versus
DHIRENDRA NATH ROY - Respondents
On appeal from the High Court at Calcutta.
Decided On : Dec. 15. 1942.
Solicitors for appellant: Hy. S. L. Polak & Co.
The doctrine of suspension of entire lump sum rent due to a lessor's failure to deliver possession of a part of the demised land is not applicable in the jurisdiction, as it is inconsistent with justice, equity, and good conscience.
Headnote:(A) Code of Civil Procedure, 1908 - Sections 100 and 101 - Scope of second appeal - The High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, regardless of how gross the error may appear. (Paras 14, 16)
(B) Land Law - Doctrine of suspension of rent - Lump sum rent - Failure to deliver possession - The doctrine that failure to deliver possession of a part of the demised land entitles the lessee to suspend the entire lump sum rent is not applicable in the jurisdiction based on justice, equity, and good conscience. Such a rigid rule is unsuitable for permanent tenancies involving large tracts, boundary uncertainties, and the nature of local agrarian conditions. (Paras 24-31)
(C) Remedies for failure to deliver possession - Where a lessor fails to give possession of a part of the land, the lessee is not entitled to a windfall suspension of rent but may seek ordinary legal remedies such as damages, apportionment, specific performance, or the right to avoid the lease. (Para 31)
Facts of the case:
A permanent tenure was granted via a lease for a specific area with a lump sum rent. The appellant claimed that a portion of the land was never delivered or was dispossessed by the landlords, and thus sought suspension of the entire rent until the land was restored. The trial and first appellate courts found that the lessee had been dispossessed. However, the High Court found that there was an original failure to deliver possession which the lessee and his successors acquiesced in for over fifty years.
Findings of Court:
The court found that the evidence did not establish that the original lessee was ever put in possession of the disputed portion and subsequently ousted. Instead, it was a case where possession was not given and not insisted upon by the lessee for several decades, during which time the full rent was paid without objection.
Issues: Whether the failure to deliver possession of a part of the land leased at a lump sum rent entitles the tenant to suspend the payment of the entire rent.
Ratio Decidendi: The court ruled that the English common law doctrine of suspension of rent for failure to deliver possession is not applicable in the jurisdiction. Given the nature of permanent tenancies, the lack of reliable old maps, and the prevalence of watery wastes and shifting boundaries, a rigid rule of suspension would be unreasonable. The proper legal recourse for a failure to deliver possession is through damages, abatement, or specific performance, rather than the total suspension of rent, especially when the claim is raised after a long period of silence.
Result: Appeal dismissed.
Legal Category Hierarchy
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property law
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land tenancy
- permanent tenure
- rent suspension
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land tenancy
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practice and procedure
- civil appeals
JUDGEMENT
Appeal (No. 51 of 1941), by special leave, from a decree of the High Court (March 29, 1938) which reversed a decree of the Additional District Judge, Faridpur (April 17, 1935), which had affirmed a decree of the Subordinate Judge, Faridpur (February 6, 1933)-
The following facts are taken from the judgment of the Judicial Committee The suit out of which this appeal arose was begun on April 15, 1931. It was a suit for three years rent of a permanent tenure which had been granted by the predecessors of the plaintiffs (respondents) and of certain pro forma defendants to one Srinath Sarkar, by a patta dated July 8, 1875, and for which a kabulyat had been executed by Srinath on May 22, 1877. He was engaged on zemindari management in the service of the respondents predecessors who granted him the patta. He died childless in 1890, and his widow, Patambari Dassee, succeeded him as tenureholder. She died on March 3, 1930, whereupon the appellant and his two brothers succeeded as her husbands reversioners. They were not originally made parties to the suit, but were added on their own application. The appellant had since acquired his brothers interests. His defence to the suit was that part of the lands comprised in the patta of 1875 were demised at a lump sum rent, and that, as the respondents or their predecessors some time in the eighties of last century dispossessed Srinath of a portion of those lands measuring some thirty-seven acres and worth about Rs.56 per annum, no part of that rent was payable by him ; his right being to a suspension of the entire rent until the lands in question were restored to him. The trial court and the lower appellate court sustained his defence and dismissed the claim for rent. The High Court (Ghose and Bartley JJ.), on second appeal, remanded the case for calculation of the proper abatement of rent to be allowed to the appellant.
The grantors of the tenure were certain persons called Rai— members of a family who owned the zemindari of a place in Jessore district called Narail, and who were referred to as the Narail Babus. Of those, certain members owning a one-sixth interest were not parties to the patta of 1875, but the other members demised thereby the remaining five-sixths share in a mouza called Orakandi, said to have an area of 1464 bighas after deduction of certain revenue-free lands and village pathways. For 822 bighas then in the occupation of raiyats the rent reserved was Rs.957-14-8. For a further 4 bighas 13 cottahs—a small cultivated area held in khas—the rent was to be Rs.4-11-0 at R.1 per bigha. For a further area of 635 bighas, which included patit or waste land, rent was fixed at Rs.317-15-9, but it was to remain rasad (in abeyance) payment being made at R.1 per bigha for such area as was found to be tilled in 1876 and at eight annas for the further areas found tilled in later years. The claim for rent in the present suit did not include any of that rasad rent, but was for Rs.770-1-4, the respondents proportion of the sum of Rs.962-9-8—that was, Rs.957-14-8 plus Rs.4-11-0—together with certain cesses. The sum of Rs.962-9-8 was called in the patta the talabi jama or demandable rent.
In 1906 or 1907, in the course of the survey and settlement then being carried out, the lands of khatians 1 to 17 inclusive were entered as in the occupation of raiyats paying rent to the Narail Babus, including the respondents. Of those the lands of eight khatians—3, 4, 6, 11, 13, 14, 15 and 17—were claimed by the appellant to be part of the 822 bighas which were settled at a lump sum rent. Those lands amounted in area to some 37 acres, and their rentals to about Rs.56. Much time was devoted at the trial to the respondents contention that those lands were not part of the 822 bighas, but lands belonging to Ratnadanga Bil and Patiladanga Bil—marshy areas which, according to the respondents, were outside the mouza of Orakandi referred to in the patta of 1875. A further contention of the respondents was
