JUDGMENT Maclean, C.J. - By a consent decree in Appeal from Original Decree No. 39 of 1899, passed by this Court, it was decreed that the Plaintiff in the present suit should execute to the Defendant in the present suit, who was the Plaintiff in the previous suit, a darmaurasi pottah at an annual rent of Rs. 3,662-6 as. with a bonus into the figures of which I need not enter, and that the present Defendant should execute in favour of the present Plaintiff a durmaurasi kabuliyat according to the terms and conditions contained in the darmaurasi pottah. This decree was passed so far back as the 16th of August 1900. No pottah, no kabuliyat has been executed. It appears, however, that the present Defendant was either put into possession or any way obtained possession of a substantial portion of the property, which was included in the proposed pottah. His case is that, as regards a portion of the property to be let to him he has not been put into possession and has never been in possession since the date of the decree to which I have referred. He says that although no pottah or kabuliyat has been executed he is perfectly willing to act upon the footing of such pottah and kabuliyat and to pay the rent reserved. But he contends that, inasmuch as he ought to have been put into possession of all the property covered by the pottah and there is a part as regards which he has not been put into possession he ought not to be called upon to pay rent for that part and that from the amount claimed by the Plaintiff for rent a proportionate amount attributable to the part of the land of which he has not been in possession and at the rate stipulated for in the lease, ought to be deducted. That seems to us to be a reasonable contention. But the learned Judge in the Court below has proceeded upon the footing of the pottah and the kabuliyat although he says in a passage in his judgment that " It is not out of place to note here that the draft pottah prepared by the arbitrators in the former inter-parties suit has not yet been executed and therefore its terms are not legally binding against the parties," and he has passed a decree for the whole rent. He says the Defendant must bring a suit for abatement of rent under the conjoint provisions of secs. 38 and 52 of the Bengal Tenancy Act. These sections do not apply where the tenant has never been put into possession by his landlord. It appears that certain parties set up that a part of the lands covered by the pottah are their lakhiraj lands, and the Defendant brought suits against them for recovery of rent in respect of these lands but failed. He therefore says to the Plaintiff "you agreed to give me a lease of these lands, you have not been able to give me possession of them, and I ought not to have to pay rent for them." That seems to us to be right. The only answer suggested is that this question cannot be gone into in the present suit and that the Defendant must bring a suit against the lakhirajdar to have this question decided. That might have been so, if the Defendant had ever been put in possession of these lands, which is not the case. The Defendant is perfectly willing to pay rent, as I understand, for that portion of the property of which he has been in possession and he says that he ought not to be called upon to pay rent for the lands of which he has never been placed in possession and which he has never enjoyed. The Judge in the Court below has declined to go into this question and has given judgment for all the rent claimed. I should have thought that the parties might have agreed upon the amount to be deducted without requiring the case to be sent back to the lower Court to ascertain the amount. Unless they can do that, the case must go back and the Defendant must have an opportunity of showing of what part of the lands he has never been put in possession and has not been in possession and what ought to be allowed him for those lands by way of deduction from the rent for the whole area covered by the proposed pottah. 2. The Appellant must have the costs of this appeal and of the lower Court. The hearing fee of this appeal is assessed at ten gold mohurs. Doss, J. I agree. I desire to add one word to what has been said by my Lord. 2. The Appellant must have the costs of this appeal and of the lower Court. The hearing fee of this appeal is assessed at ten gold mohurs. Doss, J. I agree. I desire to add one word to what has been said by my Lord. It appears that the Plaintiff obtained a decree for possession in respect of 131 bighas under sec. 9 of the Specific Belief Act against the Defendant. The Defendant contends that these 131 bighas are comprised in his lease and that he is entitled to obtain possession of those lands. The Subordinate Judge says that the Defendant has been dispossessed by a summary decision only, and that until the Defendant brings a regular suit to establish his title with regard to those lands he is bound to pay rent in respect of them. I do not think the Subordinate Judge is right in so holding. The Defendant is not liable to pay rent in respect of the 131 bighas if he has not been put in possession of those lands. This amounts practically to eviction of the Defendant by his landlords: and this makes the Defendant's case still stronger.