Harington, A.C.J.
1. I have read the judgment my learned brother is about to deliver and I agree that the decrees of the lower Court should be affirmed subject to the
modification which he proposes.
2. The principal question in the case is whether when land has been lost to a holding by diluvion and subsequently restored by alluvion, and then
settled with persons other than the tenants of the holding, the tenant is entitled to a suspension of the entire rent on the ground that the landlord has
evicted him from a portion of the demised premises.
3. The question whether an eviction by the landlord of the tenant from a part of the demised premises justifies the tenant in refusing to pay rent for
the remainder of the holding ho continues to occupy, is one on which, it is unnecessary for me to express an opinion, for in the present case the
tenant is clearly not entitled to a suspension of the rent because he has not been dispossessed by any tortious act on the part of the landlord; but by
the act of God, i.e., the encroachment of the river.
4. The law regulating the relations between the parties, i.e., the Bengal Tenancy Act, Section 52, provides that a tenant should be entitled to an
abatement of rent in respect of any deficiency in area in the holding. The tenant, therefore, ceased to be liable to pay rent in respect of the land
diluviated and the lands ceased to be in the occupation of the tenants for they had disappeared.
5. There is no finding of fact that the tenants over re-occupied the land when it had reformed.
6. If they never re-occupied that land they could not be evicted, because a man can only be evicted from lands which are in his own occupation at
the time of the eviction.
7. In the present case tenants ceased to occupy or to be liable to pay rent for the lands in question a long time before the landlords settled the lands
with other tenants. The landlords, therefore, by making this settlement did not evict the tenants.
8. I agree in the orders which my learned brother would make on these appeals.
Mookerjee, J.
9. These are appeals on behalf of the defendants in two actions for arrears of rent. The substantial defence to the claim was that large quantities of
land appertaining to the tenancies had been washed away by the river Home, that after reformation the plaintiff had settled them with third parties,
that such conduct on the part of the landlord fell within the description of eviction, that consequently the entire rent was suspended and the claim of
the plaintiff could not be sustained.
10. The Court of first instance overruled these objections and made a decree for the amount, which, according to the admission of the defendants,
was proportionate to the quantity of land still in their occupation. Upon appeal, the Subordinate Judge directed an enquiry into the question of the
quantity of land which had been washed away and of which the defendants had lost possession. After remand the Court of first instance held that
the plaintiff was not entitled to succeed at all, inasmuch as the defendants had been evicted from a part of their tenancies. Upon appeal the
Subordinate Judge reversed this decision on the ground that the Court of first instance had no jurisdiction to decide any point which had not been
expressly referred to it, and in this view made a decree for rent in respect of the lands in the actual occupation of the defendants.
11. The defendants have now appealed to this Court and on their behalf the decision of the Subordinate Judge has been assailed substantially on
the ground that upon the facts found, there has been an eviction of the defendants from a part of the demised premises and consequently a
suspension of the entire rent. Two minor points have also been urged, namely, first, that the decree of the Court of Appeal below contains a
clerical error and that the amount decreed is less than what is really due; and, secondly, that the costs of the local investigation by which the actual
area of the lands in the occupation of the defendants was determined ought not to have been thrown entirely upon the tenants who have been
successful in their contention that in any view there must be an abatement of rent.
12. In support of the first contention, reliance has been placed upon the cases of Dhanpat Singh v. Mahomed Kazim Ispahain 24 C. 296; Harm
Kumari Chowdhrani v. Puma Chandra Surbogua 28 C. 188 and Kali Prasanna Khasnabish v. Mathura Nath Sen 34 C. 191. In the first of these
cases, it was ruled upon a review of the earlier decisions in this Court as well as the decisions in the cases of Upton v. Townend 17 Com. Ben. 30;
Edge v. Boileau 16 Q.B.D. 117 and Neale v. Mackenzie 1 M.& W. 747 that if a tenant is evicted by his landlord from part of the demised
premises, the entire rent is suspended. In the second case, it was ruled that the same principle is applicable even though the tenure from a part of
which the tenant has been evicted was created under a lease under which the rent was reserved at a certain rate per bigha. In the third case, it was
held that, although in the case of a partial eviction for which the landlord is responsible, the entire rent is suspended, if the partial eviction has been
caused by an act of a stranger, the rent is only abated pro tanto. Let it be assumed on the authority of these cases that if a tenant has been evicted
by his landlord from a part of the demised premises, the entire rent is suspended. But the question remains, whether a tenant can be said to be
evicted by his landlord within the meaning of this rule when he loses possession in the first instance by reason of an act of nature, namely, as in this
instance, the action of a river, and subsequently upon reformation of the land, the landlord settles it with a stranger. In order to determine whether
the rule ought to be extended to a case of this description, the principle upon which it is founded requires examination. The reason was stated in
old cases to be that the landlord ought not to be encouraged to injure his tenant whom by the policy of the feudal law he ought to protect. The
reason given in modern cases is that the landlord cannot be permitted to apportion his own wrong. The older reason will be found set forth in
Bacon''s Abridgment Tit. Rent (m), Vol. VI, 49, where it is stated that no man may be encouraged to injure or disturb the tenant in his possession
whom by the policy of law he ought to protect and defend."" The later reason will be found set forth by Chief Justice Hale in Hodgkins v. Bobson 1
Ven. 276 in which he stated that: ""if the lessor enters into a part by wrong, this would suspend the whole rent, for in such a case he shall not so
apportion his own wrong as to enforce the lessee to pay anything for the residue."" The reason for the rule was investigated by Mr. Justice Holmes
in Smith v. Mc. Euayne 170 Muss. 20 : 01 Am. M.S. Rep. 270 where the learned Judge refers not merely to the two reasons just mentioned, one
based on considerations partly of a feudal nature, and the other on the ground that the landlord cannot apportion his own wrong, but also to the
following statement by Lord Chief Baron Gilbert in his treatise on Rents, at page 178 : Because by the demise, every part of the land was equally
chargeable with the whole rent, therefore, the lessor shall not by his own act discharge any part from the burden during the continuance of such
contract. This indeed may he a good reason why the whole rent service shall be suspended, if the lord or lessor disseizes or ousts his tenant or
lessee of any part of the land, because there is a wrongful act to which the tenant consented not, and if it were not attended with a total suspension
of the rent until he makes restitution of the land, it would be in the power of the lord or lessor to resume any part of the land against his own
engagement and contract, and so by taking that which lies most commodious for the tenant, render the remainder in effect useless, or put him to
expense and trouble to restore himself to such part by Courts of law."" If these reasons for the rule are borne in mind, can it be contended on any
intelligible principle of law that it should be extended to cover a case where the tenant in the first instance loses possession of part of the demised
premises by an act of nature which neither he nor his landlord could control. It cannot be suggested that this is a case in which the landlord by his
own wrong has withdrawn a part of the land demised and ought not consequently to recover rent either on the lease or outside of it for the
occupation of the residue. Nor can it be suggested that this is a case in which the lessor discharges a part of the land from the burden and charges
the rest with the rent which issues out of the whole land. It is further worthy of note that u/s 52 of the Bengal Tenancy Act, the Legislature has
provided that in a contingency of this description, the tenant would be entitled to proportionate abatement of rent. The abatement, therefore, when
it first commences, is not due to the action of the landlord, nor is it claimed by the tenant by reason of reduction in the area of the tenancy caused
by a wrongful act of the landlord. This is, therefore, mainfestly a case to which it would be unjust on principle to extend the rule, which, it may be
observed, has been adopted in England not without considerable divergence of opinion. For instance, in Stokes v. Cooper 3 Camp. 513 Note it
was ruled by Chief Justice Dallas that the whole rent was not suspended, if the tenant continued in possession of the residue of the demised
premises, but that he would be liable on quantum meruit. This was stated as the law in standard treatises on the law of Landlord and Tenant,
subsequently published, and was accepted as the correct view by the Court of King''s Bench in Ireland in Grand Canal Company v. Fitzs Simons
1. H. & B. 449. It was not till Baron Parke questioned the decision of Chief Justice Dallas in Reeve v. Bird 1 C.M. & R. 31. at 36 that the tide
turned, and the point was finally settled in Upton v. Townend 17 Com. Ben. 30. It would not to right to extend the application of a rule of this
description which may often operate harshly, to cases to which the principle on which it is founded is clearly inapplicable. If a contrary view were
maintained, there might be manifest hardship and injustice, for instance, when land has been diluviated and reformed, it is often a matter of
considerable difficulty even for Courts of Justice to determine whether the land which has re-appeared is a reformation on the old site. If under
circumstances like these, the landlord lets out the newly formed land to a stranger at the risk of the entire suspension of the rent of the former
tenant, he may be unjustly punished when there was no intention on his part to commit any wrongful act, Henderson v. Mears 1F & F. 636. It is
clear, therefore, that the principle invoked by the defendants, namely, that as the landlord is responsible for the partial eviction of his tenant from
the demised premises, there is a suspension of the entire rent, has no application to this case. The principal ground taken on behalf of the appellants
must consequently be overruled.
13. The next ground taken on behalf of the appellant is that although the Subordinate Judge held in his judgment that the defendants were entitled
to abatement of rent for the lands originally diluviated and now no longer in their possession, they have not been granted this relief by reason of a
clerical error in the decree. This contention is well-founded. The Amin who made the local investigation and whose return was accepted by the
Subordinate Judge stated that in suit No. 909, out of which appeal No. 856 arises, the total quantity of land was 8 khadas and odd, of which 8
kanis and odd had been washed away, and the remaining 8 khadas and odd is in existence out of which the defendants have been dispossessed
from two kanis. The quantity of land, therefore, in the possession of the defendants is the difference between these two, namely, 6 khadas and
odd. The decree, however, has been drawn upon the footing that the defendants had in their possession 8 khadas and odd. Similarly in suit No.
911, out of which appeal No. 916 arises, the defendants are in occupation of 14 khadas and odd less 3 khadas and odd, that is, about 10 khadas
and odd. But the decree has been drawn upon the assumption that they are in occupation of 14 khadas and odd. The learned vakil for the
respondent conceded that any clerical error in the decree due to miscalculation must be corrected. This will accordingly be done.
14. Lastly, it is pointed out that, by an oversight of the Court below, no order has been made as to the costs of the local investigation, which were
deposited in the first instance by the defendants and the burden of the whole of these costs ought not to be thrown upon them. This contention also
cannot be resisted. The position taken up by the defendants in the Court of first instance was that the plaintiff was not entitled to the whole of the
amount claimed as rent because a substantial portion of the land had been diluviated. This defence has succeeded and the plaintiff has got a decree
for only a portion of the amount originally claimed. It is right, therefore, that the defendants should get a portion at any rate of the costs incurred by
them in successfully substantiating their defence. In the circumstances of the case, the costs of the local investigation should be borne equally by the
parties. As the whole of these costs appears to have been deposited by the defendant, the decree will provide that they will be entitled to credit for
one-half of this amount as against the plaintiff.
15. Subject to the two amendments mentioned, the decrees of the Courts below will be affirmed and these appeals dismissed. As the substantial
question raised by the appellants has been decided against them, and as the amendments in the decree now made might have been secured by an
application to the Court below, the appellants must pay the respondent his costs of these appeals.
