SUDHANYA SANTRA Vs. BASANTA KUMAR SIRCAR

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in a suit for arrears of rent.

(2.) The suit was tried in the Court of first instance by a Judicial Officer specially empowered by the Local Government to exercise final jurisdiction under Section 153 of the Bengal Tenancy Act and the amount claimed in the suit did not exceed Rs. 50. The suit was decreed with costs in favour of the plaintiff. Thereupon the defendant preferred an appeal to the District Judge: this was summarily dismissed under Order XLI, Rule 11, Civil Procedure Code, on the ground that no appeal lay on the authority of the decision in Baidya Nath V/s. Dhon Krishna 5 C.W.N. 515. A second appeal was thereupon preferred to this Court. In support of the appeal it was argued before Mr. Justice Newbould that the appeal to the District Judge was competent, inasmuch as the decree of the Primary Court had decided a question of the amount annually payable by the tenant. This contention was overruled and the decree of the District Judge was affirmed, Consequently, the point involved in the present appeal is, whether the appeal to the District Judge was or was not competent under Section 153 of the Bengal Tenancy Act, The determination of the question depends on the. nature and contents of the decree made by the Court of first instance.

(3.) The suit was brought to recover arrears of rent at the rate of Rs. 8-3 annas 4 pies a year with cesses and damages for a period of four years. The case for the plaintiff was that in Mouza Shapkhali he had inherited 6-annas 8-gundas share in maliki right from his mother Saroda Sundari Dassi and 9-annas 12 gundas share in ijara right from his father Ram-narain Sircar. On this allegation the plaintiff sought to collect the sixteen annas rent from the tenant defendants, who were in occupation of 3 bighas 16 cottas of land at a rental of Rs. 8 3-4 pies. The first defendant, who alone entered appearance, admitted that the plaintiff had maliki right to the extent of a 6-annas 8-gundas share inherited from his mother, but denied the existence of the alleged ijara right during the period in suit. Consequently, the point arose for decision, whether there was an ijara of a 9-annas 12-gundas share in favour of Ram Narain Sarkar and whether the plaintiff had inherited that share; in other words, was the defendant liable to pay the sixteen-annas share or only a 6-annas 8-gundas share of the rent to the plaintiff. The Trial Court same to the conclusion that not only the maliki right but also the ijara right was in existence and that the plaintiff was consequently entitled to realise from the defendant the entire sixteen-annas rent claimed. On these facts, the question arises whether the decree of the Trial Court decided a question of the amount annually payable by the tenant. If the expression amount annually payable by the tenant signifies the amount annually payable by the tenant in respect of the tenancy, there was no controversy between the parties and no decision on a disputed question, because they were agreed that the rent of the holding was Rs. 8-3 annas 4 gundas a year. On the other hand, if the expression amount annually payable by the tenant signifies the amount annually payable by the tenant to the landlord who had instituted the suit for recovery of rent, as stated in an earlier part of the sub-section, there was a substantial point in controversy, namely, whether the amount payable by the defendant to the plaintiff was to be calculated at the rate of Rs. 8 3-4 a year or at the rate of two-fifths of that sum.