MANU/WB/0295/1922Equivalent Citation: (1922)ILR 49Cal948

IN THE HIGH COURT OF CALCUTTA

Decided On: 27.02.1922
Appellants: Udoy Kumar Dass Shebait of Idols of Lakshmi Janardan and Ors.
Vs.
Respondent: Katyani Debi
Hon'ble Judges/Coram:
Asutosh Mookerjee, Newbould Edward Brooks and H.G. Pearson, JJ.
Case Note:
Landlord and tenant - Suit for rent--Dispossession by stranger--Abatement,
claim for, when not sustainable--Lessor's implied covenant for quiet
enjoyment, if includes case of wrongful disturbance by strangers--Sale of
tenure in execution of decree for arrears of rent if constitutes new tenancy--
Bengal Tenancy Act (VIII of 1885), Section 159, object of--Possession of
trespasser during continuance of lease, if adverse against landlord.
JUDGMENT
Asutosh Mookerjee, J.
1. These two appeals have been preferred under Clause 15 of the Letters Patent against
the judgments of this Court in two suits for rent, inacmuah as the Judges of the Division
Bench were equally divided in opinion. The suits were instituted by the appellant for the
recovery of arrears of rent from the defendant, in respect of a tenure, for two
consecutive periods. The grounds put forward by way of defense included a claim for
abatement of rent on the allegation that the defendant was not in possession of the
lands in Mouzah Daskati comprised in the tenancy. The Trial Court gave effect to this
contention. On appeal to this Court Mr. Justice Woodroffe held that the view taken by
the Court of first instance was well-founded Mr. Justice Caming held, on the other hand,
that the claim for abatement could not be sustained in respect of the lands of Mouzah
Daskati. The result was that under Section 98, Sub-section (2) of the Civil Procedure
Code, 1908, the decrees made by the Subordinate Judge stood confirmed. On the
present appeal, the controversy has centered on this question, and it is consequently
sufficient to recapitulate concisely such only of the material fasts as bear upon the
elation of the point argued before us.
2 . On the 27th November 1878 Satyendra Nath Tagore granted a reclamation lease to
Ananda Chandra Banerjee and Pratap Narayan Sarkar, in respect of lands in the
Sunderbuns, estimated to cavern area of about 3800 bighas within specified boundaries.
The lands comprised several Mouzahs including Daskati. As has since transpired this
Mouzah was situated in four revenue-paying estates, namely, Nos. 982,991, 992 and
993. Tagore was the proprietor of three of these estates, namely, Nos. 991, 992, and
993 which included all the lands of Monzah Daskati, except 61 acres comprised in
Batata No 982; this latter estate was sold for arrears of revenue on the 10th June 1875
and was purchased by one Hari Charan Banerjee on behalf of Hari Charan Chaudhuri, as
resited in the deed of release, dated 7th January 1877., Consequently, under the lease
granted by Tagore on the 27th November 1873, Banerjee and Sarkar acqaired a good
title to possession of the lands of Daskati except the area just mentioned, and the fact
is indisputably established that they did obtain possession of all the lands covered by

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the lease granted to them within the specified boundaries which they expressly
covenanted to keep intact. Ten years later, Hari Charan Chowdhury (whose widow is the
defendant respondent in these litigations) purchased at an execution sale held on the
20th December 1887, the lands of an under-tenure in Daskati comprised within his
estate No. 982, and obtained delivery of possession through Court on the 6th April
1888. Under colour of this purchase, Chowdhury forcibly took possession of all the
lands of Daskati and on or about 12th April 1888 he dispossessed Banerjee and Sarkar
of the lands of Daskati included in their tenancy. Banerjee and Sarkar were, as will
presently appear in embarrassed circumstances, and did not take immediate steps to
recover possession of those lands by ejectment of Chowdhury. They had already
defaulted to pay rent to Tagore, who had instituted a suit against them early in 1883 for
recovery of arrears due under the lease of the 27th November 1878, in respect of the
years 1882 1885. The result was that on the 24th February 1887 an amicable settlement
was effected between Tagore on the one hand and Banerjee and Sarkar on the other.
The latter admitted that the lands in their occupation measured not 3,800 but 4,300
bighas, and they agreed that they would not be competent to apply for abatement of
rent for the said admitted 4,300 bighas on any ground whatever. They further agreed as
to the amount of arrears actually due, which they undertook to pay in specified
instalments. The matter was placed before the Court on the 25th February 1887 when
the compromise was confirmed, and on the 8th March 1887 a decree was drawn upon
its basis. Sarkar and Banerjee, however, did not tarry out the terms of the decree,
which was accordingly enforced by execution, and, on the 20th March 1889 one
Nilkantha Singh became the purchaser at the sale which followed in due course. Singh,
in his turn, failed to pay rent regularly, and the result was the institution of a suit
against him by Tagore for recovery of arrears for the year 1889-90. Singh resisted the
claim on the ground that he was not in possession of the lands of Daskati and was
entitled to proportionate abatement of rent. The Trial Court upheld this contention, and
on the 28th August 1891 made a modified decree in favour of Tagore. On appeal, the
District Judge approved of the same view on the 17th February 1892. But on the second
appeal to this Court, Norris and Banerjee, JJ. held on the 29th August, 1893 that Singh
who had purchased at the sale in execution of the consent decree was bound by the
agreement that rent would be paid in respect of 4,300 bighas and that no remission
would be claimed on any account whatever. In support of this view, reliance was placed
upon the decision of Wilson and Field, JJ.in Ishan Chunder v. Chunder Kant 13 C.L.R.
55. The consequence was that this Court varied the decree and allowed the claim for
rent in respect of the entire area of 4,300 bighas. This decision has found its way into
the reports; Satyendra Nath v. Nilkantha 21 C. 383 : 10 Ind. Dec. 886; This decree was
enforced in due course, and on the 16th April 1894 the defendant Katyani Debi, wife of
Hari Charan Chowdhury, became purchaser at the execution sale. As already stated,
Banerjee and Sarkar had made no attempt to eject Chowdhury from the lands of Daskati
during the brief period which intervened between the 12th April 1888 when the
dispossession took place and the 20th March 1889 when their tenure was sold up by
Tagore and passed into the hands of Singh. Singh also did not take recourse to
litigation to eject Chowdhury during the four years which intervened between the 20th
March 1889 when he purchased and the 16th April 1894 when his tenure was sold up
and purchased by the present defendant. The defendant, Els might have been
anticipated, has never endeavoured to recover the lands of Daskati from her husband,
or after his death, from his representatives-in-interest. On the other hand, she appears
to have amicably paid to the landlord the entire rent due year after year since the date
of her purchase. the interest of the landlord has, by successive transfer and devolution,
now become vested in the present plaintiff, who has instituted these two suits for
recovery of arrears; the first covers the period 1916 17 and the second 1917-18. In

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each suit, rent is claimed at the contract rate (13 annas per bighas mentioned in the
kabuliyat of the 27th November 1878 in respect of an ares of 5,161 bighas, which is
alleged to be the area now found by actual measurement in the possession of the
defendant. The claim has been resisted on a variety of grounds which need not be
enumerated for our present purpose. It is sufficient to state that one of the objections
was that the defendant was entitled to abatement in respect of the lands of Mouzah
Daskati which were annexed by her husband on the 12th April 1888. The Subordinate
Judge, as already indicated, gave effect to this contention, Mr. Justice Woodroffe has
expressed his opinion in favour of the game view, while Mr. Justice Cuming lass held
that the wrongful seizure by Chowdhury which might have been remedied by recourse
to law by Banerjee and Sarkar or by Singh or by the defendant herself, cannot be
invoked to sustain the plea of abatement.
3 . On behalf of the tenant-defendant, reliance has been placed on the rule that in the
absence of a contract to the contrary, the lessor is deemed to contract with the lessee
that if the latter pays the rent reserved by the lease and performs the contracts binding
on him, be may hold the property during the time limited by the lease without
interruption. This principle is of no assistance to the defendant be-cause it does not
include a case of disturbance by persons having no lawful title or right of entry.
Reference may in this connection be made to the exposition contained in the classical
judgment of Sir John Vanghan, Chief Justice of the Court of Common Fleas, in the case
of Hayes v. Bickerit off (1669) Vau 118 : 124 E.R. 997:
By covenant in law, the lessee is to enjoy, his lease against the lawful entry,
eviction, or interruption of any man, but not against tortuous entries, evictions,
or interruptions, and the reason of law is solid and clear, because against
tartans acts the lessee hath proper remedy against the wrongdoers.
4 . The Chief Justice then slows that the express covenant, like the implied covenant,
protects the lessee only against lawful disturbance of strangers, and summarises the
"inconveniences if the law should be' otherwise."
A man's covenant, without necessary words to make it such, is strained, to be
unreasonable, and, therefore, improbable to be so intended; for, it is
unreasonable a man should covenant against the tortious acts of strangers,
impossible for him to prevent, or probably to attempt preventing.
2. The covenantor, who is innocent, shall be charged, when the lessee
hath his natural remedy against the wrongdoer: and the covenantor
made to defend a man from that from which the law defends every
man, that is, from wrong.
3 . A man shall have double remedy for the same injury against the
covenantor, and also against the wrongdoer.
4. A way is opened to damage a third person (that is the covenantor)
by un-discoverable practice between the lessee and a stranger, for
there is no difficulty for the leesse secretly to procure a stranger to
make a tortious entry, that he may, there-fore, charge the covenantor
with an action.
5 . The rule is now firmly settled that like the express covenant the implied covenant
protests the lessee against all disturbance by the lessor whether lawful or not, save
under a right of re-entry, but as against other persons it protects the lessee only against

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lawful disturbance; Nash v. Palmer (1816) 6 M. & S. 374 : 17 R.R. 364 : 150 E.R. 1088;
Granger v. Collins (1840) 6 M. & W. 458 : 55 R.R. 687 : 9 L.J Ex. 172 : 151 E.R. 492;
Young v. Raincock (1849) 7 C.B. 310 : 18 L.J.C.P. 193 : 13 Jur 539 : 137 E.R. 124 : 78
R.R. 652; Sandeson v. Berwick upon Tweed Corporation (1884) 13 Q.B.D. 547 : 53
L.J.Q.B. 559 : 51 L.T. 495 : 33 W.R. 67 : 49 J.P.6; Wallis v. Hands (1893) 2 Ch. 75 :
62 L.J.Ch. 586 : 3 R. 351: 68 L.T. 428 : 41 W.R. 471. A similar view was adopted in
Benjamin Douzelle v. Girdharee Singh 23 W.R. 121 where it was stated that in the
absence of any exprers agreement to the contrary, a landlord is under the implied
obligation to indemnify his tenant against ouster or disturbance of possession by his
own act or by the acts of these who claim under him or have a light paramount to his
but not against the wrongfut acts of third parties. To the same effect are the decisions
in Vithilinga Padayachi v. Vithilinga Mudali 15 M. 111 : 5 Ind. Dec. 426; Tayawa v.
Gurshidappa 25 B. 269 : 2 Bom. L.R. 1070 and Muktar Ahmad v. Sundar Koer 19 Ind.
Cas. 815 : 17 C.W.N. 960. In the case' before us, as we have already teen, Banerjee
and Sarkar were wrongfully deprived of the lands of Dashati by Chowdhury who had no
lawful title thereto They bad their remedy against Chowdhury, and even if they, or after
them, Singh, accosted in the dispossession, the defend-ant might have recovered
possession of the lands from her husband Chowdhury. Consequently, the defendant
cannot successfully claim the benefit of the rule of implied covenant for quiet
enjoyment.
6 . On behalf of the defendant, the contention has next been put forward that the
plaintiff landlord is not entitled to the full rent, as there has been a breath of the
implied covenant to give possession. In support of this proposition, reliance has been
placed upon the decisions in Coe v. Clay (1829) 5 Bing 440 : 3 M & P. 57 : 7 L.J. (O.S.)
C.P. 162 : 30 R.R. 699 : 130 E.R. 1131; Jinltt v. Edwards (1856) 11 Ex. 775 : 4 W.R.
303 : 105 R.R. 787 : 156 E.R. 1045; Wallis v. Hands (1893) 2 Ch. 75 : 62 L.J.Ch. 586 :
3 R. 351: 68 L.T. 428 : 41 W.R. 471; Zaminiar of Vizianogram v. Behara Suryanarayana
Patrulu 25 M. 587 : 12 M.L.J. 249; Meenakshi Sundara Nachiar v. Chidambaram Chetty
15 Ind. Cas. 711 : 23 M.L.J. 119 : 12 M.L.T. 124 : (1912) M.W.N. 813 and Manindra
Chandra Nandi v. Narendra Chandra Lahiri 52 Ind. Cas. 13 : MANU/WB/0025/1919 : 23
C.W.N. 585: 46 C. 956. The principle deducible from these decisions is of no assistance
to the defendant. Assume that, in the absence of a contract to the contrary, the lessor is
bound, on the lessee's request, to pat him in possession of the property, and that the
lessee has a good defence to an action for rent if the lesser is not able or willing to do
so on the agreed date : Holgate v. Kay (1844) 1 Car. & K. 341 : 70 R.R 800; Bung Loll
Singh v. Roodur Pershod 17 W.R. 386; Bullan v. Lalit Jha 3 B.L.R. App. 119; Hurish
Chunder v. Mohinee Mohun Mitter 9 W.R. 582; Munnee Dutt Singh v. Willian Campbell
12 W.R. 149; Shama Prosad Ghose v. Taki Mullik 5 C.W.N. 816 B.L.R. App. 119;
Pemmaraju Venkiah Garu v. Secretary of state 6 Ind. Cas. 727 : M. 108 : M.L.T. 390 :
(1910) M.W.N. 456; Secretary of State v. Pemmoraju Venkayya Garu 35 Ind. Cas. 254,
30 M.L.J. 575 : 19 M.L.T. 318 :3L.W. 443 : (1916) M.W.N. 342 :40 M.910 and
Narainsawamy Naidu v. Yerramali 5 Ind. Cas. 479 :33 M. 499 :7M.L. T. 119 : (1910)
M.E.N. 221, it is plain that has been no default on the part' of the landlord, for, Tagore
did place the tenants, Banerjee and Sarkar, in possession of all the lands of the tenure
at the inception of the tenancy. There has thus been prima facie no breach of the
implied covenant to give possession. The defendant has made a desperate endeavour to
escape from this insuperable difficulty, and has strenuously contended that there is, in
law, a fresh contract of tenancy constituted, whenever a tenure is brought to sale at the
instance of the landlord, in execution of a decree for arrears of rent, so that on every
sash successive occasion be becomes hardened with an implied obligation to place the
purchaser in possession as if there was a new demise, the commencement of a new
term. This argument is manifestly fallacious and is based on a fiction which has no

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counterpart either in the actual intention of the parties or in racognised principles of
law. When in execution of a decree for arrears of rent, a tenure is exposed for sale, the
landlord does not intend that in the very process of sale, the tenure should be
extinguished, and a new contract of tenancy treated between him and the successful
bidder. Section 159 of the Bengal Tenancy Act contemplates a real sale, a real purchase,
in other words, a transmission, not an extinction of interest. The purchaser acquires the
existing tenure, subject to protested interests, but with power to annul incumbrances
thereon, by recourse to the prescribed procedure. The landlord cannot consequently be
called upon by the purchaser to place him in possession by expulsion of a trespasser
who may have dispossessed the defaulter. If such trespasser has been in possession
from less than twelve years, he has acquired no title and may be ejected by the
purchaser by a suit; on the other hand, if the trespasser has acquired a statutory title
against the defaulter by lapse of time, he is still an encumbrancer and is equally liable
to be ejected by a suit after annulment of the incumbrance. Ishan Chandra v. Sefatulla
Sikdar 68 Ind. Cas. 219 :35 C.L.J. 36 : 25 C.W.N. 703; Arsadulla v. Munseb Ali 14 Ind.
Cas. 349 :16 C.L.J. 539: 16 C.W.N. 831; Satish Chandra V. Mun amali Debi 15 Ind. Cas.
869 : 17 C.W.N. 340; Bhusan Chandra Ghosh v. Srakanta Banejee 33 Ind. Cas. 957:45
C. 759 : 23 C.L.J. 485 : 21 C.W.N. 165; Monmotha Nath Mitter v. Anath Bundhu Pal 61
Ind. Cas. 469: 25 C.W.N. 103; Gokul Bagadi v. Debendra Nath Sen 11 Ind. Cas. 453 :
14 C.L.J. 136; When the purchaser is armed with such powers,' there is no reason why
he should have authority, at his choise, to enforce the intervention of the landlord. We
are not unmindful that there is a dictum of Rampini, J. in Kali Nath Sen v. Trailokhya
Nath Boy 26 C. 315 : 3 C.W.N. 194:13 Ind. Dec. 805 which, if, generalised, may lend
apparent support to the theory that on the sale of a tenancy a new contract is created
between the auction-purchaser and the landlord. This view, however, was not adopted
by Banerjee, J. in the case mentioned and was expressly repudiated by Sir Francis
Maclean, C.J., and Geidt, J. in Narendra Nath Sarkar v. Moniruddi 69 Ind. Cas. 109 : 35
C.L.J. 209 [Second Appeal No. 238 of 1801 decided, 14th August 1903.] The dictum
was subse-quently explained away by Rampini, J., himself in his judgment in the Full
Bench case of Lal Gopal Dutt Chowdhry v. Manmatha Lal Dutt32 C.258: 9 C.W.N. 175.
We hold accordingly that in the case before us no new tenure was (treated, either on
the 20th March 1889 (when Singh purchased) or on the 16th April, 1894, (when the
defendant purchased) and it is significant that on neither occasions did the purchaser
request the landlord to give possession by the eviction of Chowdhury.
7 . Finally, the defendant has urged, that the plaintiff is bound to allow abatement of
rent for the Daskati lands, as the relationship of landlord and tenant no longer subsists
between the parties in respect threof. This argument is baaed on the erroneous theory
that' the adverse possession of Chowdhury which has extinguished the interest of the
tenure-holder has also operated to extinguish the title of the landlord. It is now well
settled that the possession of a trespasser, during the continuance of a lease, does not
become adverse against the lessor; the lessor is in possession by receipt of rent from
his lessee; so long as such rent is not intercepted by a trespasser he cannot be said to
have been dispossessed. Hazra Sardara v. Kunja Behari Nag 40 Ind. Cas. 271 : 25 C.L.J.
635 : 21 C.W.N. 1001. This rule, first enunciated by Peacock, C, J., in Davis v. Kazee
Abdool Hamed 8 W.R. 55 and shortly afterwards independently recognised by Norman,
J. in Huronath Rai v. Indoo Bhoosun Deb 8 W.R. 135 was re-affirmed by Peacock, C.J.,
after elaborate discussion in Womesh Chunder v. Raj Narain Roy 10 W.R. 15. We may
usefully re-call here the following observations: "The difficulties and dangers of
Zemindars would be great if they were bound to bus for declarations of right whenever
they should discover any person other than the tenant in possession of any part of the
land included in a patni tenure. They would have no means of knowing, and no means,
that I am aware of, of compelling either the tenant or the trespasser to reform them

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whether the person in occupation was there with the consent of the holder of the tenure
or an under-tenure derived from him, or merely as a trespasser. To hold that a grantor
is bound to sue immediately a trespass is committed upon his tenant, and that he will
be bound by limitation if he does not sus within twelve years from the time, that the
trespass was first committed would open such a door to friend and collusion between
tenants and trespassers that the Zemindar or land owner, when be seeks to enforce the
payment of his rent, would often find trespassers, whom in consequence of limitation,
he could not get rid of, in possession of the greater portion of the tenure, and who, as
soon as he should have defeated the land owner by the plea of limitation, would
probably share the spoil with the defaulting tenants. Instead of granting under-tenures
tenant would allow their friends and relations to trespass upon their tenures, and thus
protest them by limitation in the event of default in payment of their rent. But even if
the grantor could, during the existence of the under-tenure, have maintained such
Anacin against a trespasser upon his undertenant, it is clear that a purchaser of the
under-tenure could not do so before the sale; and if not, how could the grantor of an
under, tenure sell the under tenure in the state in which he created it, if the purchaser is
to be barred by limitation against persons who have encroached upon the under
tenant."
8. The principle is applicable, as is clear from the judgment of Peacock, O.J., whether
the lease, during the subsistence whereof the dispossession of the tenant takes place, is
for a term or is in perpetuity: see Hrek Chand v. Bejoy Chand 2 C.L.J. 87 : 9 C.W.N.
795. Reference may also be made to Beioy Chand Banerjee v. Rally Prosonno Mookerjee
4 C. 327 : 2 Sho L.R. 106: 2 Ind. Dec. 207; Krishna Gobind Dhur v. Hari Churn Dhur 9
C. 367 : 12 C.L.R. 19 : 4 Ind. Dec. 894; Sheo Sohye Boy v. Luchmeshur Singh 10 C.
577 : 5 Ind. Dec. 387; Sarat Sundari v. Bhobo Pershad Khan 13 C.101 : 6 Ind. Dec.
566; Kishwar Nath Sahi Deo v. Kali Sankar Sahai MANU/WB/0164/1905 : 10 C.W.N.
343 and Baikuntha Nath v. Chaitanya Charan 57 Ind. Cas. 994 which are in harmony
with the opinion expressed by Peacock, C.J. Sea also Thamman Pande v. Maharaja of
Vizianagram 29 A. 593 : 4 A.L.J. 726 : (1907) A.W.N. 185; Harnaman v. Dasondhi 58
Ind. Cas. 733 : 1 L. 210 : 112 P.L.R. 1920; Girdhari Lal v. Umdajan 63 Ind Cas. 717 : 3
L.L.J. 215. The contrary view indicated in Brindabun Chunder Sircar v. Bhoopal Chunder
Biswas 17 W.R. 377 and Prosunnomoyi Dasi v. Kali Das Roy 9 C.L.R. 347 though
supported by Sundara Aiyar, J., without the (sic) of Abdur Rahim, J,, in Ambalavana
Chetty v. Singaravelu 15 Ind. Cas. 146 : (1912) M.W.N. 669 cannot be justified on
principle and is opposed to what is regarded by Lord Alverstone, C.J. as well
established doctrine in Walter v. Yalden (1902) 2 K.B. 304 : 71 L.J.K.B. 693 : 87 L.T.
97 : 51 W.R. 46 : 18 T.L.R. 668 : See also Poole v. Griffith (1864) 15 Ir. C.L.R. 270.
The position may be different where there are successive leases for terms, and much
may be urged in support of the contention that if on the actual termination of one of the
leases, the landlord grants a fresh lease without exercising his right to sue for
ejectment forthwith vested in him, time will begin to run against him from that date:
Ahmadi Begum v. Mahasay Tarasnath Ghosh 21 Ind. Cas. 233 : 17 C.W.N. 1173 at p.
1181 : 18 C.L.J. 399; Ecclesiastical Commissioners of England v. Bows (1880) 5 A.C.
733 : 49 L.J.Q.B. 771 : 43 L.T. 353 : 29 W.R. 159 : 45 J.P. 36; Kennedy v. Woods
(1868) 2 I.R.C.L. 436. There is plainly no real analogy between such a hypothetical case
and the case before us where the dispossession took plate during the continuance of a
permanent lease. The adverse possession of Chaudhury, however operative it may have
been as against Banerjee, Sarkar, Singh and the defending can in no sense be treated
as effective to extinguish the title of the plaintiff as landlord. There is thus no
foundation for the view that the defendant has ceated to be the tenant of the plaintiff in
respect of the lands of Daskati.

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9. But if the claim for abatement is thus found beset with inextricable difficulties when
examined from different standpoints, there is a still graver objection, which mast be
surmounted before it can be successfully maintained. We have seen that on the 24th
February 1887 an amicable settlement was effected between Tagore, the landlord, on
the one hand, and Banerjee and Sarkar, the tenants, on the other; the result was that
the tenants agreed that they would not be competent to apply for abatement of rant on
any ground whatever in respect of the area of 4,300 bighas found by measurement to
be in their occupation. This was clearly a valid agreement between the landlord and the
tenants, and the tenancy was thenceforth to be held subject to this condition. It was on
this very ground that Norris and Banerjee, JJ, overruled the claim for abatement put
forward by Nilkantha Singh. The defendant as execution-purchaser, does not, in this
respect, stand in a position of greater advantage than Nilkantha Singh who also had
purchased at a sale for execution of a rent decree. Thus, apart from the principle of res
judicata, the decision of Wilson and Field, JJ. in Ishan Chunder v. Chunder Rant 13
C.L.R. 55 and of Norris and Banerjee, JJ., in Satyendra Nath v. Nilkantha 21 C. 383 : 10
Ind. Dec. 886 treated as precedents binding on this Court, negative the claim for
abatement. But as we have also shown, the claim cannot otherwise 'be sustained on the
merits.
10. The result is that these appeals must be decreed and the decree of the Subordinate
Judge in each suit varied so as to allow the plaintiff rent of plots C. D. and Dl depicted
in the map of the Commissioner as lands of Daskati included in the tenure held by the
defendant.
11. The plaintiff will be entitled to the costs of each of these appeals under the Letters
Patent. The hearing fee will be assessed according to the scale, in the appeal valued
above Rs. 5,000, and at Ra. 150, in the other appeal. In respect of the hearing before
the Division Bench, as the cross-objection of the plaintiff in the first suit has succeeded,
he will be entitled to the costs thereof, and we assess the hearing fee at Rs. 150. As the
appeal of the plaintiff in the second suit has also succeeded, he will be entitled to the
costs thereof, but no separate hearing fee will be allowed. The order of the First Court
as to proportionate costs will be left undisturbed. But in determining the costs in all the
Courts the amount as settled by this judgment will be adopted as the basis. The exact
amount now decreed will be calculated by the parties and inserted in the decree. Liberty
reserved to speak to the minutes.
Newbould Edward Brooks, J.
12. I agree.
H.G. Pearson, J.
13. I agree.

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