W M GRANT Vs. RAM RAKHAR BHAGAT

JUDGEMENT

(1.) These appeals arise out of the judgment of the Special Judge at Bhagalpur in suits under Section 105 of the Tenancy Act.

(2.) There were also two Rules issued in case it should be held that there was no appeal. We are inclined to hold that there is no appeal as regards the finding that the present rent must be maintained inasmuch as the plaintiff has failed to prove any excess.

(3.) In the case of Rameshwar Singh V/s. Bhooneswar Jha 4 C.L.J. 138 : 33 C. 837, it was laid down in a case, where enhancement was claimed on both the grounds on which it is claimed here, that when the Special Judge holds in such a case that no case has been made out for enhancement on any of the grounds stated in the application, this is a decision settling a rent within the meaning of Section 109(3) of the Act and consequently no second appeal lies to the High Court. In the case of Haj Kumar Pratap Sahay V/s. Ram Lal Singh 5 C.L.J. 538, to which one of us was a party, this case was distinguished but not dissented from and although the ratio decidendi appears at first sight to be that, where the Special Judge merely proceeds on the ground that there was no excess land and, therefore, no rent to be settled, an appeal lies, it must be taken to be an exceptional case depending on the very narrow single issue that was raised in that case and not governing a case like the present where the Special Judge has held that the plaintiff has failed to establish his grounds for asking for a settlement of rent at a higher rate. It is conceded that no appeal lies from the finding that there has been no rise in the price of staple food crops during the currency of the rent but it is urged that the ground which the learned Special Judge has taken, namely, that there has been a splitting up of the tenancy and hence there is no currency of the former rent is not a decision on the merits, but a defective exercise of jurisdiction and hence open to revision under the rule issued on that ground. It is contended that the learned Judge has followed the authority of Uday Chandra v. Nripendra Narayan 1 Ind. Cas. 4 : 36 C. 287 : 13 C.W.N. 411, to which one of us was a party and not considered the case of Madhumala V/s. Alfazaddi 13 C.W.N. 962 : 10 C.L.J. 45 : 2 Ind. Cas 415, where the opposite view was taken although the Judges in the latter case did not consider the former.