JONARDI MANDAL Vs. ANADI NATH RAY

JUDGEMENT

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

(2.) The claim was valued at less than Rs. 100. A second appeal to this Court would accordingly be barred under Section 153 of the Bengal Tenancy Act, unless one or other of the special circumstances mentioned in that section was proved to exist. Mr. Justice Cuming came to the conclusion that there were no such special circumstances and that the appeal was consequently incompetent. In this view he did not consider the appeal on the merits. We are of opinion that this view as to the nature of the decree under appeal cannot be supported.

(3.) The defendant holds under the plaintiffs a parcel of land and the plum trees thereon. The case for the plaintiffs is that the land was settled first at the rate of Rs. 5 a year and that the trees were settled thereafter at the rate of Rs. 2 a year. The plaintiffs accordingly claimed rent for the years in suit at the rate of Rs. 7 a year for the land and the trees. The defendant contended that there was no separate settlement in respect of the trees and that the rent of Rs. 5 covered both the land and the trees. The trial Court came to the conclusion that the defence had been established and made a decree for rent at the rate of Rs. 5 a year. The plaintiffs appealed. The Subordinate Judge held that the rent of Rs. 5 covered the land only and that an additional rent of Rs. 2 was payable in respect of the trees. He accordingly modified the decree of the primary Court and made a decree for rent at the rate of Rs. 7 for the land and the trees. The defendant has appealed to this Court.