KHAIRULLAH Vs. NAZIR SHAH

JUDGEMENT

(1.) THIS is an application for revision by the defendant Khairullah Raffiuddin and Dadrudeen against the judgment and decree of the Small Causes Court, Jaipur City. The plaintiff Nazir Shah and Jalal claimed that a sum of Rs. 3/8/- was granted for the lighting expenses at the shrine of Bhurey Shah situated at Ghat Darwaza in the city of Jaipur to the ancestors of the parties and that the parties were the descendants of the ancestors to whom this sum was granted and the plaintiffs were entitled to half the amount They claimed that the defendant Khairullah had realised the entire amount of Rs. 3/8/- from the Municipal Committee, Jaipur, on the said account from the 1st of January, 1949, to 1st of May, 1951, and had retained the entire amount of his ownself. The plaintiffs were entitled to half of the said amount of Rs. 98/- and therefore they were entitled to a decree for Rs. 49/ -. The defendant Khairullah who was the main defendant in this case raised objections inter alia that the suit was not of a small cause nature and was, therefore, not cognizable by a court of Small Causes. It was also pleaded that the defendant alone was entitled to the entire sum. The learned Judge of Small Causes however was satisfied that the plaintiffs were entitled to the amount claimed and gave a decree to the plaintiffs for the sum claimed.

(2.) IN this revision it has been argued by Mr. R. S. Sharma on behalf of the applicant that the suit was barred from the cognizance of the Small Causes Court by virtue of Art 13, Schedule 2 of the Small Causes Courts Act. This Article runs as follows: - "a suit to enforce payment of the allowance or fees respectively called malikana and haqh, or of cesses or other dues when the cesses or does are payable to a person by reason of his interest in immovable property or in an hereditary offence or in a shrine or other religious institution. " It was argued by Mr. Sharma that the suit was to enforce payment of the allowance or fees or other dues by reason of the plaintiffs' interest in an hereditary offence or in a shine. It should therefore, have been filed in a regular civil court. I have carefully considered the wordings of the said Article and to my mind it applies only to a suit which is brought by the person claiming the dues in an hereditary office or in a shrine against the person from whom they are primarily payable. It does not apply to a suit for his share by one of the persons entitled thereto against another person who has raised the entire amount from the person primarily liable. I am fortified in this view by two decisions of Punjab Chief Court one in the case of Jowahir Singh & Puran Singh vs. Sardar Man Singh (l) and the other in the case of Harnam vs. Gandu (2 ). IN the first case, the plaintiffs claiming as rightful successors of the former incumbent brought the suit for the realisation of his share of offerings received by the defendant, the manager of the Golden Temple for a Specified period. It was held that Art. 13 was limited to a suit against the person "by whom dues were payable, or his legal representative and not against a person who had realised the amount from the person primarily liable to pay it.