ATAR MIAN PATWARI Vs. INDRA KUMAR DE

JUDGEMENT

(1.) These two appeals are on behalf of defendant 1 and they arise out of two analogous suits for recovery of arrears of rent. The lands in each suit represent a half share of the plots covered by khatian No. 26 of mouza Ramapur, and two jamas of Rs. 6 and Rs. 7 respectively are recorded in respect of the two halves under two different sets of landlords. The defence of the tenant defendants was of a two-fold character. It was said, in the first place, that the tenants having been dispossessed from a portion of the demised premises, the entire rent should be suspended. The other point taken was that the frame of the suits was defective as some of the landlords were left out as parties plaintiffs. The trial Judge gave effect to the first plea and finding that there had been, in fact, a partial dispossession by the landlord, dismissed the entire claim for rents. On appeal the judgment was reversed and both the suits were decreed. It is against this decision that the two second appeals have been taken to this Court. It seems to us on hearing the learned advocates on both sides that the question involved in these two appeals is really one of fact and the finding arrived at by the lower appellate Court is conclusive in second appeal. The Commissioner who was directed to make a local investigation was of opinion that the defendants were dispossessed from portions of lands situated at Shivajogi and Shoragazi. The Munsif did not agree with the Commissioner entirely and came to the conclusion that there was no dispossession from the lands of Shoragazi but that the tenants did not get possession of the Shivajogi lands. On appeal, the lower appellate Court on a consideration of the entire evidence on the record came to the specific finding that the defendants failed to prove dispossession with regard to the lands situated at Shivajogi. In our opinion, there was no misdirection on a point of law and the finding being binding on us in second appeal, the appeals must fail.

(2.) There were two applications filed by the appellant under Section 115, Civil P.C., upon which two rules were obtained and they have come up for hearing before us along with the appeals. The point raised in the rules is that the rent suits being valued at loss than Rs. 50 and the Munsif who tried them having been empowered to exercise final jurisdiction within the meaning of Section 153, Ben. Ten. Act, the appeals to the Court of appeal below were incompetent and the Subordinate Judge in allowing the appeals exercised a jurisdiction not vested in him by law. The controversy really centers round the point as to whether, when the Court gives effect to the tenants plea of suspension of rent on the ground of partial dispossession by the landlord, it can be said to have decided a question relating to the amount of rent annually payable by the (tenant as is contemplated by the proviso to Section 153. The question is not altogether free from doubt and there seems to be some amount of conflict of judicial opinion re-Harding it. In Dinanath Das V/s. Sarat Chandra ( 17) 4 AIR 1917 Cal 208 it was held by a Division Bench of this Court that when the question as to whether the defendants were entitled to get an abatement of rent or they wore bound to pay full rent was gone into lay the lower Court and a full decree was given, an appeal would lie under Section 153, Ben. Ton. Act. Following this decision it was hold by Nasim Ali and Henderson JJ. (vide Sabaratulla V/s. Manikjan Dinanath Das V/s. Sarat Chandra ( 17) 4 AIR 1917 Cal 208) that a case of total suspension of rent is not distinguishable in principle from one of abatement of rent and when the question for decision is whether the rent payable is a certain amount or in the alternative nothing at all, the question is one of the amount of rent yearly payable and a second appeal would lie under Section 153, Ben. Ten. Act.

(3.) On the other hand, there is an unreported decision of Cuming and Mullick JJ. in S.A. No. 1520 of 1924, decided on 3 May 1927, where in exactly similar circumstances a contrary view was taken. The learned advocate for the appellant has drawn our attention to a decision of the Letters Patent Bench of this Court in Raimoni Dasi V/s. Upendra Nandan Das where the tenant in answer to a claim for rent relied on a custom of hajabad and it was held by this Court that the question as to whether by reason of the flood in a particular year the tenants were exempted from paying rent for that year in pursuance of the custom, was not one relating to the amount of rent annually payable by a tenant. It may be pointed out, that here the tenants claim for remission was limited to one year only, the custom not being disputed, and consequently such plea was of the same nature as a plea of payment. Whether a plea of suspension of rent stands on the same footing depends, in my opinion, on the nature of the pleadings and the facts of a particular case. When the tenant has not been put in possession of any portion of the demised premises or has been permanently deprived of it and the Court either directs suspension or abatement of rent generally, it cannot be said that a question of the amount of rent payable by the tenant is not decided in such cases. Even if a case of total suspension of rent is different in principle from one of abatement or apportionment of rent, it may, I think, be fairly argued that in a case like the present, where the plea taken by the tenant is one of partial dispossession by the landlord, a question would always arise as to whether the rent should be suspended in its entirety or would be apportioned merely and if the Court allowed suspension, that would amount to an implied decision that there should not be any apportionment in that particular case. In any case, having regard to the conflict of opinion, we do not think that we would be justified in holding that the appeal to the Court of appeal below was not competent. Assuming for argument's sake that no appeal did lie to the lower appellate Court, on the facts of this particular case we are of opinion that the decision of the trial Court was clearly wrong and could not be supported and as the decision of the lower appellate Court seems to us to be perfectly just and proper, we are not inclined to interfere with this decision in exercise of our discretionary powers under Section 115, Civil P.C. The result is that the rules are discharged. We make no order as to costs both in the rules and the appeals. Roxburgh, J.