( 1 ) THIS is a plaintiffs appeal in a suit for possession over a shop and some land adjoining the shop and also for recovery of Rs. 962 as arrears of rent trill the date of institution of the salt. A permanent Lease of the said shop and land was granted by the predecessor-in-title of the plaintiff to the defendant on 23-5-1927, at an annual rent of Rs. 150 payable half yearly. The lease provided that, in default of payment of three successive instalments, the lessee would be entitled to re enter upon the property. Admittedly, rent was paid till 31-12-1937, after which the defendant made no payments at all. The suit giving rise to the appeal was filed on 31-5-1944, for the reliefs I have already mentioned.

( 2 ) IN defence, it was pleaded that the defendant had been dispossessed by the plaintiff in 1937 from a major portion of the adjoining land and that therefore, under what is known as the rule of suspension of payment of rent, the defendant was not liable to pay anything at all. After the written statement had been filed, an application was made by the plaintiff that he might be award-ed at least a proportionate amount as rent for that part of the leased premises which was still in the possession of the defendant.

( 3 ) THE trial Court, holding that the plaintiff had dispossessed the defendant from a portion of the land, as pleaded by the latter, decreed the suit only for a proportionate amount at the rate of Rs. 60 per year, in all for Rs. 390 dismissing the rest of the claim. On appeals by both the parties, the entire suit was dismissed on the finding that the rule of suspension of rent applied in the present case, and that, therefore, there was no alternative but to dismiss the suit in toto.

( 4 ) LEARNED counsel for the plaintiff-appellant has raised two points in support of his appeal : (1)that the finding of the Courts below that the plaintiff had dispossessed the defendant from a portion of the premises was wrong, and (2) that the principle of suspension of rent did not apply to the facts of this case.

( 5 ) ON the first question, it would be enough to say that it is purely one of fact, and I am not permitted to re-open it in second appeal.

( 6 ) THE second question is somewhat one of difficulty in view of the authorities placed by the learned counsel for the parties before me. On behalf of the defendant, the decision of the Judicial committee in Katyayani Devi v. Udoy Kumar Das, 52 Ind. App. 160: 1925 ALL. L. J. 751 (P. C.), was relied upon in the lower appellate Court, and emphasis is laid before me also on this case in sup-port of the judgment of that Court. Certain cases of the Calcutta High Court, which were referred to in the judgment under appeal, were also cited on behalf of the defendant-respondent. For the plaintiff-appellant reliance was placed on the Privy Council case in Ram Lall v. Dhirendra Nath, A. I. R. (30) 1943 P. C. 24 as well as on two Madras cases, Suryanarayanaraju v. Rajah of Tekkali, A. I. R. (10) 1923 Mad. 459 and Hanumantha Goundan v. Doraiswami pillai, A. I. R. (15) 1928 Mad. 380.

( 7 ) SO far as the Calcutta cases on the one hand and those of Madras on the other are concerned, there is undoubtedly a conflict between the two sets. In the former, it was held that the principle of suspension of rent applied where the lessee was subsequently evicted by the lessor from a portion of the land demised. In the latter, the contrary rule was laid down that in such oases there would be no such principle applicable but that the lessor would be entitled to a proportionate rent, that is, to an amount payable for the portion still in possession of the lessee.

( 8 ) I have, therefore, to draw upon the two Privy Council cases, referred to above and see how far, if at all, they help the respective contentions raised in this case. It would be convenient to begin with the later case reported in A. I. R. (30) 1943 P. C. 24 first, as the Judicial Committee in that case have considered the prop