A landlord who dispossesses a tenant from a portion of the demised premises in a tortuous manner is not entitled to claim any rent on the basis of the contract with the tenant.

R. P. Mookerjee, J. :- This is an appeal by the defendant and arises out of a suit brought by the plaintiffs claiming rent for the demised premises.

2. The plaintiffs claimed to be entitled to recover arrears of rent with cess and damages for the years 1349 to 1352 B. S. The only question for determination in this appeal is whether the defendant is entitled to a total suspension of the rent or a proportionate abatement of the same for the period in suit, on the ground that the plaintiffs landlords had dispossessed the tenant from one of the plots in suit, in spite of protests from the tenant defendant.

3. The learned Munsif found that out of a total area of 7.48 acres constituting the jama in suit the landlords had dispossessed the defendant in respect of C. S. Plot No. 816 covering an area of .04 acre. He observed :

"It seems to me that the plaintiffs finding the position of the C. S. Plot No. 816 vis a vis their own plot No. 802 actuated by greed simply illegally and highhandedly grabbed the C. S. Plot No. 816 within their own C. S. Plot No. 802 in 1349 B. S. in the hope that the defendant who is a Pathsala Pandit would tolerate it and would at least get a proportionate abatement of rent."

4. The rent for the demised land as fixed by the kabuliyat Ex. 1 was a lump rent for the entire land and it was held that the plaintiffs were not entitled to any rent from the defendant until C. S. Plot No. 816 was restored. The suit was accordingly dismissed. The plaintiffs story that they had been possessing C. S. Plot No. 816 on the strength of a usufructuary mortgage was found not to have been substantiated.

5. On appeal by the plaintiffs the District Judge agreed with the trial Court that the plaintiffs story of a usufructuary mortgage to justify their possession of C. S. Plot No. 816 was not proved. He also found that the plaintiffs had lands on three sides of C. S. Plot No. 816 which was a kink in their side. They wanted to remove the dent and straighten out the boundary line. The plaintiffs were held to have dispossessed the defendant of this small plot in 1349 B. S. The area of the plot dispossessed being very small, it was held that it would not be equitable to suspend the entire rent. As the defendant had continued to be in possession of the rest of the holding the learned District Judge came to the conclusion that only a small part of the rent need be suspended. He deducted Re. 1 from the rent claimed for each year. He also disallowed compensation and costs. As the other issues had been left undecided by the trial Court, he directed a remand to that Court for a decision of those other issues.

6. The only point urged by the tenant appellant in this appeal is that he is, on the facts of this case, entitled to a total suspension of rent for the period in suit.

7.The question whether a tenant is entitled to abatement or suspension of rent, on the ground that the landlord had not either at the inception of the tenancy put the tenant in possession of the entire demised property or that he had been responsible for the subsequent eviction of the tenant from a part of the tenancy, had given rise to conflicting decisions in this Court.

8. Sir Barnes Peacock C. J. had in Gopanund v. Gobind Pershad, 12 W.R. 109, relying on the opinion expressed in Bacons Abridgment, introduced in India the English rule of suspension of rent. The rule as enunciated in Bacon and adopted in this Court was in the following terms :

"Where a lessor enters forcibly into part of the land there are variety of opinions whether the entire rent shall not be suspended during the continuance of such tortuous entry, and it seems to be the better opinion and the settled law at this day, that the tenant discharged from the payment of the whole rent till he be restored to the whole possession, that no man may be encouraged to injure or disturb his tenant in his possession, whom by the policy of the law he ought to protect and defend."

9. This view was adopted in later cases