JUDGMENT V.P. Mathur, J. - This appeal is directed against the judgment and order passed by Sri J.M. Paliwal, the then II Additional Civil Judge, Agra, on 30-3-1979 in original suit No. 253 of 197. 2. The suit was filed by Hazari Lal Parashar against the State of U.P. declaration that the plaintiff was not liable to make payment of Rs. 30,000/- allegedly falling due as payment in respect of instalments Nos. 3, 4 and 5, There was was further prayer that the defendants be restrained from making recovery of this amount from the plaintiff. The Relief was based on the allegations that a notice was issued on the allegations that a notice was issued by the defendants that a notice was issued by the defendants notifying the holding of an auction in the month of August, 1973 of the right to dig out stone, Kankar, and sand from various places in different villages of district Agra. This notice was issued by the prescribed Authority Minerals. The plaintiff participated in the auction which took place on 28-8-1973 and his bid being highest, i.e. for Rs. 4,000/- per year for a period of three years. Lasting up to 30-6-1976 in respect of the mining of sand in village Keori was accepted. The sand was to be taken out form the bed of river Chambal. The plaintiff deposited Rs. 10.000/- was deposited subsequently. A sum of Rs. 18,00/- was also deposited by him for the purpose of execution of a deed of lease in his favour. The deed was actually executed on 15-3-74 on a stamp paper. The contention of the plaintiff is that the entire area of village Keori had been leased out of out one thousand cubic meters of sand from the plot No. 1044/13. Actually there was no separated demarcated plot No. 1044/13 and, therefore, this permit to Sabha Ram could not have been issued since the entire village regarding deposit of sand was already leased out to the plaintiff. On the basis of the permit granted to him, Sabha Ram illegally dug out sand from the are of plot No. 1044, measuring 128 bighas and 12 biswas, and did not allow the plaintiff to take out and from anywhere from River Chambal. This happened during the period sending 6-1-1974. On the basis of the permit granted to him, Sabha Ram illegally dug out sand from the are of plot No. 1044, measuring 128 bighas and 12 biswas, and did not allow the plaintiff to take out and from anywhere from River Chambal. This happened during the period sending 6-1-1974. Thus obstructions and hindrances and created as a result of deliberate act and omission on the part passage top go to the Sabha Ram to carve out a passage to go to the he could not take out any sand from the beginning of January till June, 1974. He was thus put huge loss. He served the defendants are not demanding Rs. 30,000/- as dues for the three instalments for any payment as he was forced not to exercise his right to take out sand from the bed of river Chambal, hence the defendants are not entitled to any claim. 3. The suit was contested by the defendants, who are now appellants before this Court, on various ground including the ground that it was barred by Section 80 Civil P.C. it was undervalued and the court-fee paid was insufficient and it was not legally maintainable. 4. On merits, it was contended that what was leased out to the plaintiff was the entire sand bed of river Chambal in village Keori excluding plot No. 1044/13 because this was a Bhumidhar plot of Sabha Ram and on that Ram and on that basis permission was rightly given to Sabha Ram. Since this plot was not in the lease granted to the plaintiff he had no right to extract any sand from this plot and this suit is misconceived and should be dismissed. 5. The following issues were framed by the learned Civil Judge for determination in this case:- "1. Whether the entire land covered by sand of the village Keori would be deemed to be the subject matter of notice issued for the auction sale of the sand? 2. Whether the plaintiff has no right to refer to the notice of auction sale in view of lease deed executed by him in favour of defendant 1? 3. Whether the plaintiff has right to withhold the payment due under the lease? 4. Whether the suit is undervalued and the court-fee paid is insufficient? 5. Whether the suit is barred by S. 80, C.P.C. 6. 3. Whether the plaintiff has right to withhold the payment due under the lease? 4. Whether the suit is undervalued and the court-fee paid is insufficient? 5. Whether the suit is barred by S. 80, C.P.C. 6. Whether the suit is not legally maintainable for the reasons given in paras 26, 27 and 28 of the W. S.? 7. To what relief, if any, is the plaintiff entitled?" 6. The learned Civil Judge came to the conclusion that plot No. 1044/13 was not included in the lease and, therefore, there was no justification for the plaintiff to claim that his rights were infringed when Sabha Ram started digging sand from this plot. It was, however, held that the plaintiff was not put in possession of the property at any time and so he is not liable to pay the mining charges in accordance with the terms of the lease.In this manner the suit of the plaintiff was dismissed. 7. I may start with enunciating the legal position in such cases. On the basis of a Privy Council decision in the case Ram Lal Dutt v. Dhirendra Nath, AIR 1943 PC 24 , a similar case was considered and on its basis in the case of Manohar Lal v. M/s. Bengal Potteries Ltd., the Patna High Court in AIR 1958 Pat 457 considered a case of similar type and held that the delivery of possession by a lessor is a condition necessary for the maintenance of an action for rent. This rule applies to all kinds of leases and it simply explains the statutory provision enacted in S. 108, T.P. Act. 8. In the Privy Council case on which this Patna ruling was based, out of the demised land a big chunk, measuring 37 acres of land was not given possession of to the lessee. He did not insist for its possession also and this situation continued for 50 years. The Privy Council, however, allowed the abatement in the rent on the ground that it was the duty of the lessor to put the lessee into possession. 9. To some extent a similar view was taken in the case of Dr. Prabhu Narain v. Kamla Prasad, AIR 1964 Pat 59 in which a Division Bench also held that under Cl. (b) of S. 108, T.P. Act there was a legal obligation on the lessor to put the lessee in possession. 9. To some extent a similar view was taken in the case of Dr. Prabhu Narain v. Kamla Prasad, AIR 1964 Pat 59 in which a Division Bench also held that under Cl. (b) of S. 108, T.P. Act there was a legal obligation on the lessor to put the lessee in possession. The court, however, held additionally that this duty was limited to cases in which request was made by the lessee to that effect. It also held that where the lessee is acquainted with the land leased to him and there is no likelihood of obstruction to his going upon the land and taking possession of it, there is no duty cast on the lessor to put the lessee in possession unless the latter request him to do so. It was further held that in the absence of such a request and consequent failure of the lessor to perform his obligation, the lessee cannot make a case for refund of the consideration money from the lessor. 10. As I have already noted above, the. law laid down was partially in terms of the dictum of the Privy Council. It was also not completely in consonance with the earlier case of Manohar Lal, ( AIR 1958 Pat 457 ) (supra). However, that does not affect us in the decision of the present case. 11. There is yet another case Nilkantha Pali v. Kshitish Chandra, AIR 1951 Cal 338 which also lays down that where the rent is a lump sum amount representing the whole land lease and the landlord has dispossessed the tenant in a highhanded manner from a portion of the land, he cannot be entitled to claim any rent on the basis of the contract with the tenant as he has acted tortuously in not allowing the tenant to hold the land peacefully. The mere fact that the area dispossessed is a small one cannot have overriding importance so as to dissuade the court from applying the principles of justice, equity and good conscience if the court comes to the conclusion that the act of the landlord was definitely a tortuous one. 12. The mere fact that the area dispossessed is a small one cannot have overriding importance so as to dissuade the court from applying the principles of justice, equity and good conscience if the court comes to the conclusion that the act of the landlord was definitely a tortuous one. 12. Lastly we may also refer to another Privy Council decision in Jogesh Chandra v. Emdad Meah, AIR 1932 PC 28 , which lays down that in cases in which the lessee denies obtaining of possession the onus lies on the landlord to prove that possession was given before the landlord can enforce the tenants obligation to pay rent. 13. The sum and substance of the law is that when a contract culminating in a lease is arrived at the rent is payable only if it is proved that the lessee has been put in possession of the demised property. If it is established that possession was not delivered, the liability to. pay rent or lease money, whatever we may call it, will not arise. 14. Therefore, the most important point to be decided in this case would be whether there is evidence on record to show that the plaintiff-respondent was put into possession , of the demised property and whether as such ' he was liable to pay the instalments of the lease money or whether as a matter of fact he was never put into possession and hence is not liable to pay the lease money. 15. Incidentally we may also look into two other points which were raise by the present appellants during the course of hearing of the suit, namely the issues regarding court-fee and valuation and bar of S. 80, Civil P.C. These points, it appears, were not pressed before the court below and before me also no arguments have been advanced on these points. Therefore, they do not arise for determination at all. 16. The facts of the matter disputably are that a notice was issued for auction of stone, sand, grit, etc. This notice is paper No. 13 Ka on the record of the lower court. In Tehsil Bah two villages Keori and Bibrawali were mentioned as places which were to be put to auction on 28-8-73 for extraction of sand. 16. The facts of the matter disputably are that a notice was issued for auction of stone, sand, grit, etc. This notice is paper No. 13 Ka on the record of the lower court. In Tehsil Bah two villages Keori and Bibrawali were mentioned as places which were to be put to auction on 28-8-73 for extraction of sand. On the basis of this notice the contention of the respondent was that whole village Keori was auctioned out to him and no plot was excluded. This, however, is not correct. This notice paper No. 13-Ka only roughly discloses as to what was to happen with the auction. There is, of course, a registered deed of lease executed on 15-3-74, which is Ext. I on the record in which all the conditions, etc., of the lease granted to the respondent have been enumerated. Undoubtedly the sand of village Keori was auctioned in favour of the respondent for Rs. 40,000/- per year for a period of 3 years. He paid Rs. 10,000/-immediately and Rs. 10,000/- more thereafter. The first page of this document vide Ext. 1 shows these facts. What has been leased out has been shown on the back of this page and it consists of the entire land lying in the district of Agra, Tehsil Bah, village Keori, in plots Nos. 539, area 4 bighas 1 biswa, 678/4, area 38 bighas and 5 biswas, 1044, measuring 128 bighas and 12 biswas, 679 area 14 bighas; 1046, area 71 bighas and 15 biswas. It will thus be clear that the whole plot No. 1044 was not auctioned out. It was only 128 bighas and 12 biswas of this plot which was auctioned. The whole plot No. 1044 is a very big plot and there is no dispute as regards the fact that the entire area of this plot is 235 bighas. This will be clear from the judgment of the court below also. There is the evidence of the Lekhpal to the effect that out of plot No. 1044, sub-plots have been carved out on the spot and there are Maps in existence. What was leased out to the plaintiff were plots Nos. 1044/10,1044/12,1044/16,1044/17, 1044/18 and 1044/19. Plot No. 1044/13 was clearly excluded. There is the evidence of the Lekhpal to the effect that out of plot No. 1044, sub-plots have been carved out on the spot and there are Maps in existence. What was leased out to the plaintiff were plots Nos. 1044/10,1044/12,1044/16,1044/17, 1044/18 and 1044/19. Plot No. 1044/13 was clearly excluded. The finding to this effect by the court below has not been seriously challenged and agree with it to hold that plot No. 1044/13 was not leased out to the plaintiff-respondent. 17. The question still remains whether the respondent was put into possession of the leased property. As have already mentioned earlier, the deed of lease is dated 15-3-74. Prior to it auction had already taken place on 28-8-73 and in this manner almost 7 months time had elapsed between the auction and the execution of the deed and in Ext. 1, the deed itself, there is a clear mention of the fact that the lessee has started mining operations. This fact also stands completely established from the plaintiffs own admission in para 15 of his plaint wherein he says that he could not take out any sand from the beginning of January till about the end of June, 1974. The auction took place on 28-8-73 and the contention of the appellants is that immediately thereafter mining operations were started by the plaintiff-respondent. If that is so, then his contention that obstruction was made only in January, 1974 and he could not carry out operations thereafter would show that he had already entered into possession immediately after the auction on or about 28-8-73. It is further established on record from certain documentary evidence. 18. It appears that respondent Hazari Lal Parashar filed suit No. 58 of 1974 in the court of Munsif Fatehabad, Agra, against Sabha Ram to whom the permit in respect of plot No. 1044/13 had been granted by the State. It was a suit for injunction to restrain him from interfering in Hazari Lals possession, user and right of taking the sand from certain plots Ext. 4(paper No. 16-Ga) is an application for injunction. It was claimed only in respect of plots Nos. It was a suit for injunction to restrain him from interfering in Hazari Lals possession, user and right of taking the sand from certain plots Ext. 4(paper No. 16-Ga) is an application for injunction. It was claimed only in respect of plots Nos. 1044/12/2, area 12 bighas and 2 biswas, 1044/12/2 area 10 bighas 8 biswas, 1044/16, area 5 bighas and 14 biswas, 1044/17/3, area 38 bighas 13 biswas 1044/18/2 area 5 bighas and 1 biswa, No. 1044/19/2, measuring 59 bighas and 4 biswas, and 1044/21 - area 7 bighas 12 biswas. No claim was put forth in respect of plot No. 1044/13 and there was no allegation that Sabha Ram was interfering with the plaintiffs possession in respect of that plot. Two things are discernible from these legal proceedings which were initiated at the instance of the respondent. The first thing was that even the respondent was not claiming any right up to the filing of the suit in respect of plot No. 1044/13, and the second is that he had come to the court with the allegations that in respect of the plots mentioned in his petition Ext. 4, he was in possession and there was a threat of interference by Sabha Ram and hence injunction was sought. The court granted this injunction on 5-2-74, as will be clear from the order sheet of that date, which has been placed on record as Ext. 3. Service of this injunction was made through Commissioner whose report was also filed before the learned Munsif. There is nothing on record to show that at any stage subsequently this injunction order was vacated or withdrawn. Therefore, it is very clear now that the plaintiff-respondent did enter into possession of the demised plots after the auction and even prior to the execution of the deed of lease and was rightly shown to be busy with the mining operations on 15-3-74 when the lease deed was executed. His contention that he was never put into possession cannot be accepted. The evidence adduced on behalf of the appellants consists of the testimony of the Lekhpal and it shows that he was put into possession and there was no obstruction in his way at the instance of the appellants of his extracting the sand from the plots that were granted to him by the lease. The evidence adduced on behalf of the appellants consists of the testimony of the Lekhpal and it shows that he was put into possession and there was no obstruction in his way at the instance of the appellants of his extracting the sand from the plots that were granted to him by the lease. In my opinion, the finding of the learned Judge of the Court below is thus erroneous and is not based on a proper appreciation of the evidence. It is true that next day after the execution of the lease deed dated 15-3-74 the plaintiff-respondent started correspondence with the Officers of the State alleging that interference was being caused by Sabha Ram and that they should help him. But the Officers were not bound to take notice of these facts. What the law requires is that when the lease is granted, they should put the lessee into possession and if it is once done and the lessee finds interference subsequently in his possession he has to take steps himself. It is no duty of the lessor to enter into litigation or do anything in this respect. The lessee himself filed a suit against Sabha Ram and obtained injunction in respect of the properties which were leased out to him. Under these circumstances, it has to be held that plot No. 1044/13 which was subsequently granted to Sabha Ram for extraction of sand in a limited quantity was never leased out to the plaintiff-respondent and whatever plots were leased out to him, he was put into possession thereof immediately after the auction which took place on 28-8-73 and since much prior to the execution of the lease deed on 15-3-74. 19. As such the order of the learned Civil Judge cannot be upheld and has got to beset aside and the plaintiff-respondent cannot be held to be entitled to any declaration that he was not liable to pay the instalments of the lease money. 20. The appeal is, therefore, allowed with costs throughout and the judgment of the learned Civil Judge, dated 30-3-1979 is set aside, with the result that the plaintiffs suit No. 253 of 1974 fails and is hereby dismissed-