JUDGMENT 1. Rani Sundar Koer, the Defendant-Respondent, is the widow of Rajah Ramesswar Prosad of Muksudpur. On the death of her husband she set up a Will and obtained letters of administration and got her name registered in the Collectorate as proprietress of the estate left by her husband. While in possession of the estate, she executed a zurpeshgi thica lease in favour of the Plaintiff and Defendants Nos. 3 to 5 on receipt of Rs. 2,250 on the 16th of January 1904. It appears that on the 30th November 1913, one Babu Chandreswar Prosad, the brother of the Rajah, instituted a suit against the Rani for declaration that, on the death of the Rajah, he became the rightful owner of the Raj and that the Rani had no title to it. He obtained a decree in that suit and that decree was confirmed on appeal by the High Court. It appears that the Rani preferred an appeal to the Privy Council but afterwards the appeal was compromised between the Rani and Babu Chandreswar Prosad and the appeal was withdrawn by the former. The Plaintiff remained in possession of the zurpeshgi property till Bysack 1314 when he was dispossessed by Babu Cbandreswar Prosad. He thereupon brought the present suit for recovery of Rs. 984-6, that being his share of the zutpeshgi money (the interest of the Plaintiff and the Defendants Nos. 3 to 5 in the zurpeshgi money being separate and the latter having settled their dispute with the Defendant) and for damages for the loss sustained by him in consequence of his being dispossessed of the thica property. The Court of first instance gave him a decree for a refund of Rs. 984-6, the amount of the zurpeshgi money in his share, and Rs. 3,031-14 as the profit for 7 years of which he had been deprived. On appeal the learned District Judge confirmed the decree in so far as it related to the refund of the zurpeshgi money but held that he was not entitled to any damages for the interruption of his possession by Babu Chandreswar Prosad. The Plaintiff has appealed to this Court. Now sec. 108, cl. On appeal the learned District Judge confirmed the decree in so far as it related to the refund of the zurpeshgi money but held that he was not entitled to any damages for the interruption of his possession by Babu Chandreswar Prosad. The Plaintiff has appealed to this Court. Now sec. 108, cl. (c) of the Transfer of Property Act, provides that in the absence of a contract or local usage to the contrary, the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee he may hold the property during the time limited by the lease without interruption. We think the clause is wide enough to include disturbance of possession by a person with a paramount title. Even before the Transfer of Property Act it was held that in the absence of an express agreement to the contrary a landlord is under an implied obligation to indemnify the tenant against ouster or disturbance in his possession by his own acts or by acts of those who claim under or have paramount right to him but not against the wrongful acts of strangers. [See Mrs. Benjamin Douzelle v. Gireedhari Singh 23 W. R. 121 (1874)]. After the passing of the Act it was held in the case of Tayawa v. Gurshpdapia I. L. R. 25 Bom. 269 (1900), that the words " without interruption" in sec. 108, cl. (c) of the Transfer of Property Act (IV of 1882) give a lessee in India the same rights as he would have under what is known in England as a covenant for quiet enjoyment in an unqualified form, in other words, the lessee is protected against interruption by whomsoever it is occasioned, and that where the interruption is caused by the paramount owner of the property and not by a stranger, the lessor is bound to remove the interruption and if he fails to do so he must indemnify the lessee. Here there is nothing in the contract, namely, the zurpeshgi lease, against this covenant for quiet enjoyment. The Plaintiff was dispossessed by the owner of the property, that is, by a person owning a paramount title and if cl. (c) of sec. Here there is nothing in the contract, namely, the zurpeshgi lease, against this covenant for quiet enjoyment. The Plaintiff was dispossessed by the owner of the property, that is, by a person owning a paramount title and if cl. (c) of sec. 108 is applicable to the case, we think the lessor Rani Sundari Koer is liable to indemnify the Plaintiff for the loss sustained by him under the implied covenant for quiet enjoyment under sec. 108, cl. (3). The learned District Judge, however, was of opinion that sec. 108, cl. (a), was applicable to the case. That clause runs thus: The lessor is bound to disclose to the lessee any material defect in the property, with reference to its intended use, of which the former is and the latter is not aware, and, which the latter could not with ordinary care discover. Sec. 55, sub-sec. (1), cl. (a), also provides that the seller is bound to disclose to the buyer any material defect in the property of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover. It will be seen that sec. 55, cl. (a), is similar in terms to sec. 108, cl. (a), with only this difference that the words "with reference to its intended use" which occur in the latter section do not find any place in the former. It has been held that " material defect in the property " includes a defect in title under sec. 55, sub-sec. (1), cl. (a) (vide Haji Essa Sulleman v. Dayabhai I. L. R. 20 Bom. 522 (1895). The learned Judges in that case, however, were of opinion that the expression "with reference to its intended use" in sec. 108, cl. (a), is obviously inserted to exclude defects in the title of the lessor being disclosed to the lessee. It seems to us that the words " material defect in the property with reference to its intended use" have reference to the nature and condition of the property demised. 108, cl. (a), is obviously inserted to exclude defects in the title of the lessor being disclosed to the lessee. It seems to us that the words " material defect in the property with reference to its intended use" have reference to the nature and condition of the property demised. The position of the lessor in this respect is similar to that of the bailor who, too, is bound to disclose to the bailee faults in the goods bailed of which the bailor is aware and which materially interfere with the use of them or expose the bailee to extraordinary risks and if he does not make such disclosure he is responsible for damages arising to the bailee directly from such fault (vide sec. 50 of the Indian Contract Act). We are inclined to hold that a defect in the lessor's title is not a " material defect in the property with reference to its intended use" within the meaning of sec. 108, cl. (a). But assuming that it is, the question arises whether the learned District Judge is right in holding that sec. 108, cl. (a), is applicable to the case. The learned Judge says as follows: This lease was granted on the 16th January 1904. At that time Babu Chandreswar Prosad had already instituted his suit claiming the whole Raj. This Raj is for the most part situated in the Gaya District and the lessee is a native of Manpur which is a suburb of the town of Gaya. It was common knowledge in Gaya that Babu Chandreswar Prosad claimed the Muksudpur Raj adversely to Rani Sundar Koer and had opposed the grant of letters of administration to her and the registration of her name in the Collector's registers and the fact that he had filed a civil suit although this was filed at Patna and not at Gaya was a piece of knowledge which was accessible to every one including the Plaintiff in this case. I hold, therefore, that this defect in the Rani's title was one which the Plaintiff could have with ordinary care discovered. The lessee, therefore, must be deemed to have taken this lease subject to this patent defect in the Rani's title. That being so, the implied covenant for quiet possession was only for quiet possession so long as the Rani's title continued. 2. The lessee, therefore, must be deemed to have taken this lease subject to this patent defect in the Rani's title. That being so, the implied covenant for quiet possession was only for quiet possession so long as the Rani's title continued. 2. It appears, however, that in her written statement the Defendant did not plead that the Plaintiff had any notice, actual or constructive, of any litigation that was pending in which her title had been challenged or that there were circumstances to show that the Plaintiff could have with ordinary care discovered the defect in her title. No issue was framed upon the point and there is absolutely no evidence even that the litigation referred to was a matter of common knowledge in Gaya. The Plaintiff was a native of Manpur, a suburb of the town of Gaya. The suit was instituted at Patna and not at Gaya and we are told that the zutpeshgi lease was executed by the Rani in favour of the Plaintiff before any summons had been served upon her. It was, no doubt, for the lower Appellate Court which dealt with facts to say, having regard t0 the circumstances of the case whether the Plaintiff had any constructive notice and whether the defect in the Rani's title was one which the Plaintiff could have with ordinary care discovered. It might possibly be an answer to the claim for damages that the lease was taken as a speculation and that the Plaintiff intended to take the risk of the result of litigation; but such a case would require to be very clearly proved. We have already pointed out that the question whether the Plaintiff had any notice of any defect in the Rani's title or even of any litigation in which the title was challenged was not raised in the written statement nor in the issues and there is absolutely no evidence in support of the finding of the learned Judge. No ground was taken in the grounds of appeal to the lower Appellate Court that the Plaintiff had any sort of constructive notice of any defect in the Rani's title. No ground was taken in the grounds of appeal to the lower Appellate Court that the Plaintiff had any sort of constructive notice of any defect in the Rani's title. On the contrary, in the sixth ground of appeal to the lower Appellate Court the Defendant stated: " The Subordinate Judge was wrong in holding that she had no right to grant the patta to the Plaintiff." Under these circumstances we think that the learned Judge's finding that the defect in the Rani's title was one which the Plaintiff could have with ordinary care discovered cannot be sustained and that he ought not to have decided the case upon a ground which was not set up in the pleadings, in respect to which no evidence had been adduced, and, which the Plaintiff had no opportunity of meeting. We are, accordingly, of opinion that sec. 108, cl. (a), is inapplicable to the present case and that the Defendant is liable for damages for the interruption of the Plaintiff's possession under the provisions of sec. 108, cl. (c). The question of the amount of damages, however, has not been gone into by the lower Appellate Court. The case should, therefore, go back to that Court for assessment of the amount of damages. It is, accordingly, ordered that the decree of the lower Appellate Court, in so far as it directs that the Plaintiff is entitled to a refund of the zurpeshgi money, will stand, and that the decree in so far as it disallows damages be set aside and the case remanded to that Court. That Court will assess the amount of damages and pass a decree accordingly. The decree of the lower Appellate Court in so far as it holds that the Plaintiff must pay the costs of the Court of first instance awarded to Babu Chandreswar Prosad will stand. The Respondents will pay 3 gold mohurs as the costs of this Appeal to the Appellant and the costs of the lower Courts as between the Plaintiff and the Defendant No. 1 will abide the result. 3. The present Respondents having been substituted in the place of the Rani who died, the decree will of course be against the assets of the Rani in their hands. No separate order is necessary to be passed on the application of Mayan Godawari Koer.