ANANGA MOHAN ROY CHOUDHURY Vs. KHAJE HABIBULLA

JUDGEMENT

(1.) These two appeals arise out of two suits brought by the plaintiff against the tenants under a patni in which the plaintiff claims to hold an eight annas share. To the suits Nawab Habibulla and others have been added as parties defendants as they are said to have purchased the eight annas interest in the patni of the other cosharers. It appears that the defendants Habibulla and others are the proprietors of an estate under which there was a patni which was held by one Abinash Chandra to the extent of eight annas share and Kiron Bala to the extent of the other eight annas. Abinash died leaving a will by which Kumudini is said to have obtained absolute interest in the patni. Abinash left behind him a son Abani and a grandson Ananga who is the plaintiff in these two suits. Kumudini dedicated eight annas of the property by a will to an idol Mahadeb which was installed by her and appointed the plaintiff-appellant as the shebait of. the deity. Nawab Habibulla and others brought a suit for rent in respect of the patni against Kumudini and Kiron Bala. On Kumudini's death during the pendency of the suit the Nawab brought on the record the son of Kumudini and the present plaintiff her grandson as the legal representatives of Kumudini, and it appears that a decree was passed against Abani and the present plaintiff some time after the death of Kumudini. It may be mentioned here that Kumudini appointed several executors by her will besides the present plaintiff. The other executors wanted to intervene in the rent suit. This was objected to by the Nawab with the result that the decree was obtained against Abani and Ananga as representing the eight annas share of Kumudini and Kiron Bala, the holder of the other eight annas share of the patni. In execution of this rent decree this patni was sold and was purchased by the Nawab for Rs. 27,500.

(2.) The two suits in which these appeals arise were instituted by the present plaintiff against the tenants of the patni on the allegation that his rights as holder of the eight annas share as the sole executor of Kumudini's estate (he having been appointed the solo executor by arrangement between the other executors) have not been affected by the sale in execution of the decree for rent and that the interest of the idol whom ho represents is in no way affected by the sale. The Nawab of Dacca has been made a party defendant as holder of the other eight annas share of Kiron Bala by right of purchase, and this suit seems to be one framed under Section 148-A, Ben. Ten. Act, There is an alternative prayer that if the cosharer landlords have made any collections from the tenants a decree might be passed against them for the amounts collected. The defence of the Nawab to these suits is that the entire patni passed by the sale and that the present plaintiff has no title to the patni and is not therefore entitled to get rent from the tenants under the patni. The first Court went into the question of title it seems to be with some reluctance. But as both parties apparently invoked the decision on the question of title the Court of first instance decided it and came to the conclusion that the plaintiff was entitled to get eight annas share of the rent as his rights as executor and shebait had not been affected by the sale.

(3.) Two appeals were taken in these two suits to the Court of the Subordinate Judge of Tippera and the learned Subordinate Judge has reversed the decision of the Munsif in these two suits and has dismissed the plaintiff's suits after reaching the conclusion that in a simple suit for rent a complicated question of title which had been raised by the plaintiff in his plaints could not be decided and that the suits as framed were not maintainable. He has not come to any conclusion on the question of title in the view which he took. In these two second appeals which have been preferred by the plaintiff a preliminary objection is taken on behalf of the respondents to the bearing of the two appeals on the ground that as the suits are valued at much less than Rs. 100 and as no question of title has been decided in these suits a second appeal is barred by reason of the provisions of Section 153,. Ben. Ten. Act. I think the preliminary objection is well founded, for it is clear on the decision of the Subordinate Judge that he had not decided the question of title which arose as between the plaintiff on the one hand and the Nawab on the other. If he had decided the question undoubtedly a second appeal would not be barred. But as he has refrained from deciding it no second appeal lies. The result is that these two appeals 371 and 372 must be dismissed.