JATINDRA MOHON LAHIRI Vs. ABDUL AZIZ MEAH

JUDGEMENT

(1.) Mr. Justice Shamasul Huda has correctly held that the appeal presented to him was barred under Section 102 of the Civil Procedure Code, which provides that, "no second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed five hundred rupees." The suit was for recovery of money claimed as grazing fee and the amount in dispute was less than five hundred rupees. Prima facie, then, the suit was of a nature cognizable by a Court of Small Causes. But, it has been contended that, the suit was not so cognizable, because the fee was in the nature of rent, and in support of this argument reliance has been placed upon the decision in Bandi Ali Fakir v. Amud Sarkar 26 Ind. Cas. 380 : 19 C.W.N. 415 : 20 C.L.J. 227. That case is manifestly destructive of the contention of the appellant, because it is there pointed out that there can be no claim for rent unless there is a tenancy, and there can be no tenancy unless a right to the land has been given to the grantee. In the present case, the defendants have no interest in the land on which they are allowed to graze their cattle upon payment of a fee per capita, and by no stretch of language can they be deemed tenants B & N.W. Railway Co. v. Bandhu Singh 2 Ind. Cas. 223 : 31 A. 342 : 6 A.L.J.400; Deb Nath Ghose v. Pachco Mollah 6 W.R. Civ. Ref. 8. The decision in Manohar Lal v. Gauri Rautain 22 Ind. Cas. 16 : 12 A.L.J. 36 depended on the special terms of the lease between the parties, and the same remark applies to Fitzpatrick v. Wallace 11 W.R. 231 and Latifar Rahaman v. Forbes 5 Ind. Cas. 783 : 11 C.W.N. 372, as explained in Hedayet Ali v. Kamalanand Singh 20 Ind. Cas. 332 : 17 C.L.J. 411.

(2.) We hold accordingly that the appeal was rightly dismissed as incompetent and this appeal must be dismissed with costs. Fletcher, J.

(3.) I agree.