GOUR MOHAN GHOSE Vs. CHANDI CHARAN GHOSE

JUDGEMENT

(1.) This was a suit for recovery of rent of six annas share in a tank. The defendants pleaded that they were co-owners of the plaintiffs in respect of four annas, the remaining two annas being the share to which the plaintiffs were entitled. They denied, therefore, that at least as regards this four annas share they were the tenants, but the co-sharers of the plaintiffs. As regards the other two annas, their plea was that the lease was a mere paper transaction and that in that view of the case they were not the tenants of the plaintiffs. There was an application in the first Court to treat this suit as a title suit. The Munsif declined to do so. Upon the pleas, however, he had to frame an issue as to whether the relationship of landlord and tenant existed between the parties. In a rent suit that is one of the most essential issues and must be tried. It, was so treated and the Munsif found that the relationship was made out.

(2.) There was an appeal to the Subordinate Judge, but the Subordinate Judge did not entertain the appeal being of opinion that the Munsif having final jurisdiction under Section 153 of the Bengal Tenancy Act, the appeal did not lie.

(3.) On second appeal before me, it is contended that the lower appellate Court was wrong in not entertaining the appeal and that on three grounds, first, that the question of title was decided in this case, although the Munsif by an express order said that he was not going to treat this suit as a title suit, secondly, that the suit being for a fractional share of the rent by fractional co sharers, Section 153 of the Bengal Tenancy Act has no application, and, thirdly, that the suit being for rent of a tank and not of agricultural or horticultural land, Section 153 of the Bengal Tenancy Act has no application and that the appaal to the Subordinate Judge was not barred by any provisions of law.