SHANKAR VISHVANATH KATRE Vs. SHRINIVAS BHALCHANDRA PUROHIT

JUDGEMENT

(1.) MR. Kane on behalf of the respondents has raised a preliminary objection to this appeal that no second appeal lies.

(2.) THE question is whether the suit which has given rise to this appeal is a suit of the nature cognizable by a Small Cause Court, THE suit was to recover Rs. 24-5-7 as rent due in respect of the plaint property for two years including galli-patti and local cess. THE defendants' case was that the rent was fixed at six maunds and eight payalis, that the suit would not lie until the plaintiffs got a declaration that they were entitled to enhance the rent, and that the rent claimed was excessive. On the face of these pleadings it seems to me that the suit was of the nature cognizable by a Small Cause Court, and that being so, the objection must be upheld, and the second appeal must be dismissed.

(3.) THE third contention is that the plaintiff alone being a co-sharers to the extent of two annas was not entitled to maintain this suit to recover his share in the total rent which was payable by the defendants to the inamdars. This contention also was not set up either in the trial or in the appellate Court, and I cannot allow the appellant to raise it here. Apart from that, however, it seems to me on the record that the case was that the plaintiff said that the defendant was liable to pay him his share of the rent as a tenant, arid the defendant said that the rent was not as much as claimed by the plaintiff and that the plaintiff was asking for enhancement, and that he really was a permanent tenant with a fixity of rent. If these then were the contentions between the parties, and the Court on evidence found that the share due to the plaintiff was so much, I am ' unable to appreciate the objection now made for the first time by the appellant. THE plaintiff's case was that he was an annual tenant at a certain rent. THE defendants' case was that he was a permanent tenant, and the plaintiff was asking for increased rent. It was never suggested that the plaintiff was claiming to recover more than his share in the total rent which the defendants were liable to pay in respect of their holdings.