PROVATA CHANDRA DAS Vs. MIAJAN

JUDGEMENT

(1.) This is an .,appeal on behalf of the plaintiffs in an action for rent. The claim was based on a qabuliat alleged to have been executed by the defendants on the 27 June 1874. The defendants resisted the claim on various grounds. They alleged in the first place, that the qabuliat was a forged instrument. They next contended that the plaintiffs had no title to the property and were not in possession of the disputed land which they held as tenants under certain other persons.

(2.) The Court of first instance dismissed the suit on the ground that the qabuliat was not proved to be genuine and that the defendants had never paid rent to the plaintiffs. Upon appeal the District Judge reversed that decision on grounds which it is not necessary to consider for our present purposes. The matter then came in second, appeal to this Court with the result that the .judgment of the District Judge was set aside and the case remanded for re-consideration on the evidence. When the case went before the District Judge who was the successor of the Judge who had originally heard the appeal, he transferred it to the Subordinate Judge. The Subordinate Judge heard the appeal without any objection taken by the plaintiffs and came to the conclusion that the decree of the Court of first instance ought to be affirmed. The reasons, however, which the Subordinate Judge gave in support of his conclusion were different from those given by the Court of first instance. He held, that the qabuliat was a genuine document. He further held that the defendants had established that the plaintiffs had no title to the property, that the qabuliat had been executed in favour of the plaintiffs merely to create evidence of title, that on the basis thereof the plaintiffs had brought a suit for recovery of possession in 1875 against certain persons who claimed to be the owners of the land, and that that suit had failed. Subsequently the defendants attorned in favour of the successful litigant in that suit and were in occupation as tenants.

(3.) The plaintiffs have now appealed to this Court, and on their behalf two objections have been urged against the judgment of the Subordinate Judge. It has been contended in the first place, that the District Judge had no jurisdiction to transfer the case to the Subordinate Judge. In our opinion, there is no substance in this contention. It is not suggested that the Subordinate Judge had no jurisdiction to hear the appeal. "What is suggested is that in view of the order of remand made by this Court, the District Judge should have heard the appeal himself. We are not prepared to adopt this construction of the order of remand made by this Court, But even if it be assumed that this is correct it is clear that if the appellants did not take any exception to the hearing of the appeal by the Subordinate Judge, it is not open to them, in view of the decision of this Court in the case of Gnrdeo Singh V/s. Chandrika Prasad Singh 36 C. 193 : 1 Ind. Cas. 913 : 5 C.L.J. 611, to fake objection on that ground at this stage of the proceeding s. The first contention of the appellants must consequently fail. In so far as the second contention of the appellants is concerned, it is eqally groundless. It is suggested that the judgment of the Subordinate Judge is based upon grounds not taken in the Court of first instance. There is no substance in this contention. The contention of the defendants in the Court of first instance was that the plaintiffs had no title to the property in respect of which they claimed rent, that they were never in possession, and that their effort to recover possession from the persons in actual possession had failed. The Subordinate Judge was, therefore, correct in the view he took of the case. The result is that the decree made by the Subordinate Judge must be affirmed and this appeal dismissed with costs.