JAGADAMBA DEBI Vs. UMA SANKAR DE

JUDGEMENT

(1.) These three appeals arise out of three rent suits in respect of three holdings which the plaintiff has purchased from the heirs of the holder of a patni tenure. The defendant pleaded that the areas of the holdings and the rents were not correctly described. The plaintiff accepted the defendants statement as the amount of the jamas and the suits were decreed by the first Court accordingly. The defendants appealed to the District Judge on the ground that the plaintiff should not have been allowed to amend her plaint and that the suits ought to have been dismissed. The learned Judge, while dismissing the appeals, gave effect to a plea not taken in the grounds of appeal before him or raised in the first Court, viz., that the plaintiff was not entitled to recover the rent claimed under Section 16, Ben. Ten. Act as she had not observed the procedure as laid down under Section 15, of the Act. The learned Judge, in dismissing the defendants appeal, added a rider that the plaintiff must get herself recognized by the landlord within a month, on failure of which her suits would stand dismissed.

(2.) The plaintiff has appealed and has also filed petitions in revision in case no appeal lay from the decree of the lower appellate Court. The respondents have taken a preliminary objection that the appeals are incompetent inasmuch as no appeals lay to the District Judge from the decrees of the Munsif who was specially authorized to try rent suits under Section 153, Ben. Ten. Act. This objection applies to appeals Nos. 667 and 669 of 1921 which are valued at less than Rs. 50. The objection is valid, but the appellant relies on the authority of the case of Kalipada Karmakar V/s. Sehhar Bashini [1916] 24 C.L.J. 235, and maintains that the appeals in this Court were competent. It is not necessary to examine this question as the appellants have also presented petitions in our revisional jurisdiction in the exercise of which we may set the matter right. We accordingly hold that the decrees passed by the lower appellate Court must be vacated and those of the first Court restored.

(3.) With regard to Appeal No. 668 of 1921 valued at over Rs. 50 : an appeal lay to the Court of appeal and we have to examine the correctness of the decision of that Court. Now the learned Judge admits that the point that the plaintiff is not competent to maintain the suit under Section 16, Ben. Ten. Act, was not raised in the first Court nor taken as a ground in the memorandum of appeal before him. It is a matter for regret that in such circumstances the learned. Judge should have thought it proper to investigate the question the correct determination of which might depend upon evidence, for I find that one of the grounds taken before us in appeal is that it should have been held that the rent receipts produced by the plaintiff from her landlord furnished legal proof of her recognition. It is possible that the plaintiff could have adduced more evidence in support of the recognition if the objection were taken in time. But since the Judge has considered that question as a pure question of law and come to a decision, I propose to examine the correctness of it as a question of law.