ASHUTOSH DEY Vs. FOOLCHAND KESHABDEO

JUDGEMENT

(1.) One Ashutosh Dey instituted a suit in the Court of Small Causes at Calcutta against five persons : (1) Foolchand Keshabdeo, (2) Jotindra Mohun Nundy, (3) Jagat Mohun Nundy, (4) Sudhangshu Mohun Nundy and (5) Sm. Badharani Dasi. The plaintiff's case was that he and defendants 2 to 5 were cosharers with respect to premises 8, Ram Kumar Rakhit Lane. He claimed that he had a 29/125 share therein, and the other co-sharers had 96/125 share. He alleged that defendant 1 (Foolchand Keshabdeo) was a tenant of these premises under himself and his cosharers, and he claimed his share of the rent from Keshabdeo. In the alternative he claimed that if Keshabdeo had paid all the rent to defendants 2 to 5 those defendants should pay the plaintiff his share of the rent. The defendant, Keshabdeo, took up the position that he was a tenant under defendants 2 to 5, and that he had nothing to do with the plaintiff. Defendants 2 to 5 claimed that they were the sole owners of the premises, and that the plaintiff had no share therein. No oral evidence was given, but certain documents were adduced in evidence. The learned Judge passed a decree in favour of the plaintiff, holding that the plaintiff had the share claimed by him in the premises and he found that Keshabdeo was a tenant under the plaintiff and his cosharers. Against this decision an application was made to the Full Bench of the Court of Small Causes under Section 38, Presidency Towns Insolvency Act. The Pull Bench upheld the decision of the trial Judge. Thereupon defendants 2, 3 and 4 moved this Court and obtained a rule. The only question for determination is whether the decision of the Court of Small Causes is such as would justify this Court in exercising its revisional powers under the provisions of Section 115, Civil P.C.

(2.) Mr. Bose on behalf of the petitioners raises the following points : (1) He says that inasmuch as a substantial question of title to immovable property was raised the jurisdiction of the Court of Small Causes was ousted, and the learned Judge had no jurisdiction to pronounce judgment. (2) He contends that the learned Judge acted illegally and with material irregularity in the exercise of his jurisdiction inasmuch as he did not consider certain pieces of documentary evidence, namely an affidavit of assets filed in probate proceedings, an inventory also filed in those proceedings and a consent decree. (3) He contends that the learned Judge acted with material irregularity in giving the plaintiff a decree in the absence of any evidence to show that the plain-tiff was the reversioner of one Sudebi Dasi whom the plaintiff alleged to be the last limited owner of the share claimed by him in these premises. Lastly he contends that the learned Judge has erred in giving the plaintiff a decree without finding that the relationship of landlord and tenant existed between the plaintiff and defendant 1. In my opinion, although a substantial question of title to immovable property was involved in the suit, this question was merely an incidental one, and the Court therefore had jurisdiction to try the suit which was for the recovery of the rent and, in the alternative, for the recovery of money had by the defendants on behalf of the plaintiff.

(3.) In this connexion I would refer to the decision of a Full Bench of the Bombay High Court in Puttangowda Mallangowda V/s. Nilkanth Kalo ( 13) 37 Bom. 675. The plaintiff brought a suit in the Court of Small Causes to recover a sum of Rs. 12 as the value of certain trees felled by the defendant. The plaintiff's claim to relief proceeded on the basis that the trees belonged to him because the land on which they stood also belonged to him. The question was raised that the Small Cause Court had no jurisdiction to entertain the suit. The Full Bench held that a Court of Small Causes could entertain a suit, the principal purpose of which was to determine a right to immovable property provided the suit in form did not ask for that relief, but for the payment of a sum of money. There are other cases of the Bombay High Court to the same effect. These cases are relied upon by the learned Counsel appearing on behalf of the respondent. Mr. Bose on the other hand relied upon the decision in this Court in Rajendra Mullick V/s. Nanda Lal Gupta ( 04) 31 Cal. 1001. In this case the learned Chief Justice made an observation that if the question of title was the sole question in the case the jurisdiction of the Small Cause Court would be ousted. He held on the f acts of the case before him that the sole question was not one of title and, therefore, the Court of Small Causes had jurisdiction. The facts of that case were these: The plaintiff sued the defendant for rent of certain premises. The defendant stated that he had surrendered his lease to the plaintiff and taken a fresh lease from a third party who had put him in possession. The Court of Small Causes referred the matter to this Court for their decision whether in these circum-stances the Court of Small Causes could try the suit. This Court held that the question of title arose incidentally in the suit and, therefore, the Court of Small Causes had jurisdiction.