NARAN CHANDRA DALPATI Vs. SIDH NATH SINGH

JUDGEMENT

(1.) This is an appeal on behalf of the defendants, and it arises out of a suit commenced by the plaintiffs for establishment of their title to certain residential structures and privies described in Schedule Kha of the plaint. There were further prayers in the plaint for setting aside a decree for rent, obtained by the defendants in a Small Cause Court suit against the plaintiffs in respect of the said structures and for a permanent injunction restraining the defendants from executing the rent decree. The facts lie within a rather narrow compass. The plaintiffs case is that they took lease of a plot of land measuring about 3 cottahs from the defendants about 20 or 21 years ago at a rental of Re. 1-3-0 per annum and built upon it a house consisting of ten rooms with pucca walls and thatched roof. They were paying rent all along to the defendants for the land only at the rate of Re. 1-3-0 per year. But the latter instituted a rent suit in the Small Cause Court against the plaintiffs claiming rent for the structures as well at the rate of Rs. 6 per annum, and in spite of the claim being contested by the plaintiffs, succeeded in obtaining a decree. It is this decree which threw a cloud upon the plaintiffs right to the structures and obliged them to institute the present suit. The defence was that the defendants were owners of the land as well as of the structures and that both were let out to the plaintiffs at a rental of Rs. 6 per annum. It was further contended that the decree in the Small Cause Court suit was obtained after proper contest and could not be set aside in law.

(2.) The trial Court on a consideration of the evidence on record came to the conclusion that the defence version was right and that the structures belonged to the defendants and not the plaintiffs. In this view of the case the plaintiffs suit was dismissed. On appeal the learned Subordinate Judge reversed the finding of the trial Court and came to the finding that the structures belonged to the plaintiffs. He therefore gave the plaintiffs a declaration of title with respect to the house and the privies. The prayer for setting aside the rent decree was not pressed in appeal and was rejected. It is against this decision that the present second appeal has been preferred. Mr. Sitaram Banerjee who appears for the appellants has raised only one point in support of the appeal. He does not dispute the finding of the lower Appellate Court that the structures were the property of the plaintiffs. But his contention is that the Court of Appeal below could not have given the plaintiffs a mere declaration of title when the prayer for consequential relief made by them in the shape of setting aside the rent decree was rejected as not being maintainable in law. In support of this contention he has relied upon a decision of this Court in Poran Sookh Chunder V/s. Porbutty Dossee (1878) 3 Cal. 612. I do not think that this contention is sound. The aforesaid case was decided in accordance with the provisions of Section 15 of Act 8 of 1859, which was replaced later on by Section 42, Specific Relief Act. In the case mentioned above, the plaintiff who was in possession of certain lands said to have a declaration of her lakheraj right in respect of the same on the allegation that her right was injured by reason of the defendants having obtained a rent decree against her in a Small Cause Court with regard to the said lands. It was held by Jackson, J. that such a suit was not maintainable. "In the present instance" so runs the judgment, the claim which the defendants have set up is no longer in the condition of a mere assertion or a claim for right; it has passed into a decree. Consequently the plaintiff could not bring this suit for the purpose of setting aside the judgment of the Small Cause Court, and therefore no relief could be had in respect of that. It appears to me therefore that under the law as it stood before the Specific Relief Act was passed the plaintiff could not maintain the present suit.

(3.) In my opinion the law has been changed by Section 42, Specific Relief Act. Section 15 of the old Civil P.C. of 1859 stood as follows: No suit shall be open to objection on the ground that a mere declaratory decree or order is sought thereby and it shall be lawful for the Civil Courts to make binding declarations of right without granting consequential relief.