Patna High Court
Manohar Lal Seal vs Bengal Potteries Ltd. on 29 August, 1957
Equivalent citations: AIR1958PAT457, AIR 1958 PATNA 457
JUDGMENT Kanhaiya Singh, J.
1. This second appeal by the plaintiff arises out of a suit for recovery of rent in respect of years 1353 to 1359 Ps. The defendants claimed abatement of rent on the ground that the lessor had failed to deliver possession of the entire demised land.
2. On consideration of the entire evidence, oral and documentary both the courts below concurrently held that neither the original lessor, nor his successor in interest, including the defendants were in possession of the entire land demised under the lease (Ext. 1). They held that the lessor himself was not in possession at the time when the lease was created. Their concluded opinion was that the defendants were not in possession of the entire land demised nor was the plaintiff ever in possession of those lands.
According to them the defendants had not received possession of two third of the leasehold property. On these findings they allowed abatement of rent. The rent was accordingly apportioned and the suit decreed in part.
3. Mr. P. B. Ganguly appearing for the appellant contended that the defendants and their predecessors in interest acquiesced in the lease and having paid rent for over 30 years in respect of the entire property demised by virtue of the lease (Ext. 1), they were estopped from questioning the right of the plaintiff to claim the entire rent in respect of the entire property. The facts found by the courts below shortly stated are as follows.
4. The original lease was created as far back as 4-10-1917, in favour of one Mr. Bowden. In 1920 he assigned the lease to Mr. P. N. Dutt. The latter remained in possession for a year and a half and thereafter executed an equitable mortgage in respect of the disputed property in favour of Kundan Lal Daimia, The latter obtained a decree in respect of this mortgage and purchased the entire property at auction on 21-9-1923, and in due course obtained delivery of possession. Kundan Lal remained in possession until 21-9-1943, when he sold the entire property to the defendants by virtue of a registered deed of sale. In 1947 the defendants gave notice that they had not obtained possession of the entire lands demised by virtue of the lease (Ext. 1) and asked for reassessment of the rent. Thereafter the present suit was instituted for rent for six years from 1946 to 2952. The contention of Mr. Ganguly is that when the defendants or their predecessors in interest did not object to the payment of rent for nearly 30 years, they were not entitled to raise this question. He pointed out that this question was raised for the first time in 1947.
This contention is, in my opinion, not well-founded. There is absolutely no estoppel as contended for by Mr. Ganguly. It will appear from Clause (b) of Section 108 of the Transfer of Property Act that a lessor is bound on the lessee's request to put him in possession of the property. The right to recover rent from the lessee arises only when the lessee has been delivered possession of the demised property as was observed in the case of Udhab Chandra Singh v. Narain Manjhi, 58 Ind Cas 186: (AIR 1920 Pat 611) (A). The observation runs as follows :
"It is a well recognised principle that governs the relationship between landlords and tenants that the delivery of possession by the lessor is a condition necessary for the maintenance of an action for rent. That principle applies to all kinds of leases, agricultural and non-agricultural."
This in effect explains the statutory provision enacted in Section 108 of the Transfer of Property Act. If that be the position, then any claim by the lessee for possession will not prevent him from demanding abatement even when he had paid rent and had not demanded abatement for nearly 30 years.
In a similar case their Lordships of the Privy Council allowed abatement of rent, vide Ram Lall Dutt v. Dhirendra Nath Roy, 47 Cal WN 489: (AIR 1943 PC 24) (B). In that case the lease was made in July, 1875. The suit for rent was from April, 15, 1931. The finding of the courts below in that case was that possession of 37 acres out of the demised property was not given to the lessee and was not insisted on by him. On this finding the question mooted before their Lordships was whether after more than 50 years it was open to the lessee to claim that no part of the rent fixed by the lease is payable until the lands of which possession had not been delivered were restored. In that case the tenants had claimed total suspension of rent. This defence of total suspension of rent was not sustained by their Lordships of the Privy Council. Nevertheless, they held that the tenants were entitled to abatement of rent. It is noteworthy that although in that case the question of suspension of rent, or more particularly abatement of rent, was raised more than 50 years after the creation of the lease, their Lordships did not allow the plaintiff's full claim on the ground of estoppel as is contended in this case.
This case affords complete answer to the contention of Mr. Ganguly that mere absence of demand for possession of the lands which
were not delivered by the lessor for certain number of years will estop the lessee from claiming either suspension or abatement of rent. In my opinion, this contention of Mr. Ganguly is not well founded and must be overruled.
5. Mr. Ganguly, however, contended that it was a fit case for remand since it was not clear whether there was no possession, delivered by the lessor at the inception of the lease or whether there was subsequent dispossession of the lessee. I do not think this question at all arises. The finding of the courts below is clear that the plaintiff (the lessor) was never in possession of the disputed land included in the lease (Ext. 1).
It follows that it was a case not of subsequent dispossession but a case in which the lessee had not been given possession of the entire demised property at the inception of the lease. In my opinion, remand is not warranted.
6. There is no merit in this appeal and it is accordingly dismissed with costs.