NAGENBALA DASEE Vs. SRIDAM MAHATO

JUDGEMENT

(1.) This litigation has come to this Court under the following circumstances. There is a tenure held by certain Kalamuris, who gave an ijara to one Surabala and subsequently to the plaintiff. Under this tenure, there is an under-tenure held by the Mahato defendants. The suit lands are in mouza Barasole, which is included within the under-tenure. In 1907 the Record of Rights was finally published and therein the defendants were recorded as under-tenure holders in respect of the lands of mouza Barasole, at a rental of Rupees 118-14-0. As Surabala, the then ijaradar, brought a rent suit in 1909 and obtained decree at the rate of Rs. 118-14-0. In 1910, the present defendants brought title suit-T.S. No. 200 of 1910-in order to have the rent decree set aside. In that suit, there was a compromise by which the parties agreed that the rent for the under-tenure would be Rupees 118-14-0., and that, on account of the jungle land, the defendants would supply 15 cart loads of sal and other kinds of wood for fuel annually. Thereafter the plaintiff brought Rent Suit No. 2274 of 1922, consolidating the claim for rent in respect of the aforesaid cash amount and of the wood.

(2.) The Court held that the two claims could not be so consolidated and that in respect of the claim for wood, the plaintiff was to seek for remedy in a regular civil suit. Then the plaintiff brought Money Suit No. 383 of 1925, claiming supply of wood for the jungle lands for 1330 and 1331 B.S. In that suit, there was again a compromise, by which it was settled that, instead of wood being supplied as fixed by the compromise decree in Title Suit No. 200 of 1910, the defendants would supply 8 cart loads of sal and 7 cart loads of other kind of wood. The suit was accordingly decreed in terms of this compromise. Then the plaintiff brought the present suit No. 524 of 1926, claiming wood for the years 1332 and 1333 B.S. The defence denied the finding of the solenama as aforesaid and also alleged undue influence. But the denial was not seriously pressed and undue influence was also not proved. The further defence was that the contract to supply wood as aforesaid was illegal and wholly void. The Munsif took this view and held that, by this contract, there was an enhancement of rent contrary to Section 113, Ben. Ten. Act, and it was in the nature of an abwab. In that view, the Munsif dismissed the suit. An appeal was taken to the District Judge. But he held that the suit was based on a contract and as the learned Munsif had Small Cause Court powers up to Rs. 250, the appeal was incompetent. Against that judgment, the plaintiff has filed this second appeal and also an application under Section 115, Civil P.C. Both these matters are before me.

(3.) The first question is whether the learned Judge in the Court of appeal below is right in holding that the suit is not a suit for rent. If the suit was for rent then the decision of the learned Judge was wrong and the appeal should have been heard by him on its merits. Now, the present claim is based on the compromise decrees made in the afore said suits in 1910 and 1925 respectively. The terms of the first compromise (Ex. 2) show that the tenants bound themselves to supply to their landlords so much sal and other wood annually from the jungle lands of the mouza. It cannot be gainsaid that this is rent even in the restricted sense of Clause. (5), Section 3, Ben. Ten. Act of 1885. Obviously it was something deliverable in kind by the tenants to his landlord on account of the use or occupation of the land held by the tenant. As against this, there are some observations in the judgment (Ex. 4) of the rent appeal arising out of Rent suit No. 2274 of 1922. There it is remarked as follows: As to 15 cart loads of fuel, I fully agree with the conclusion arrived at by the lower Court. It is clearly not rent, not being amalgamated with rent and payable in kists. If the plaintiff can at all recover it, he must seek his remedy in a regular civil Court and not in a rent Court.