JAGARNATH SARAN SINGH Vs. BISWA MOHAN KUMAR

JUDGEMENT

(1.) The applicant and opposite parties are the co-sharers in 11 annas share in village Sakanouli, the applicant's share being seven annas, opposite party 1 being the owner of two annas and opposite parties 2 to 8 being the owners of the remaining two annas share. A suit against the tenants, purporting to be on behalf of the owners of the 11 annas interest was instituted by the applicant for recovery of rent. In that suit a decree was passed for recovery of Rs. 825. Thereupon opposite parties 1 to 8 served a notice on the applicant's pleader asking him not to hand over the decretal amount to the applicant alone, but to distribute it among the decree-holders according to their respective shares. To. this the pleader replied that he knew only the applicant and not opposite parties 1 to 8, but that if they joined in giving him a joint receipt, he would do as requested. Thereupon the applicant and opposite party 5 appeared before the pleader who first gave to the applicant Rs. 5061-6 as being the cost incurred in the litigation and then gave to opposite party 5, Rs. 116 as being the share of the four annas proprietors in the 11 annas share and paid the balance to the applicant, receiving in exchange a joint receipt from the applicant and opposite party 5 who purported to act on behalf of opposite parties 1 to 8.

(2.) Thereafter opposite parties 1 to 8 instituted the present suit for recovery of Rs. 300 which, they alleged, was their share in the Rs. 825 decreed. To this suit the applicant pleaded that by an agreement between himself and opposite party 5, who was acting on behalf of opposite parties 1 to 8, he had instituted the rent suit on the understanding that he would be entitled to deduct whatever expenses were incurred from the amount recovered. He alleged that he had incurred expenditure of Rs. 506-1-6 and that the balance had been divided between himself and opposite party 5 acting on behalf of opposite parties 1 to 8 according to the respective shares of the parties. The applicant prayed that if opposite party 5 denied his thumb impressions on the agreement, receipt and the accounts, which the applicant had filed with his written statement, the thumb impression of opposite party 5 might be taken and sent to an expert for comparison with the thumb impressions on the agreement, receipt and the accounts. Thereafter a petition was filed by a pleader, who was not the pleader acting for opposite parties 1 to 8 in the suit but who appears to have been appointed under a vakalatnama purporting to be signed by all the opposite parties 1 to 8, admitting the thumb impressions and the receipt by opposite party 5 of the shares of opposite parties 1 to 8 in the decretal amount. Opposite parties 1 and 2 then filed an objection that this petition was made without their consent or knowledge. They asserted that opposite parties 5 to 8 had been gained over by the applicant and prayed that they should be transferred from the array of plaintiffs to the array of defendants: this transfer was allowed. The Court disbelieved the case made by the applicant and decreed the suit against the applicant and opposite party 5 for Rs. 250 which was the share of opposite parties 1 to 4 in the rent suit. Against that decree the applicant has moved this Court.

(3.) The learned advocate for the petitioner has raised two questions of jurisdiction. In the first place it is contended that the suit bring, in essentials, a suit for accounts and recovery of the profits of immoveable property belonging to the plaintiffs which has been wrongfully received by the defendant, was not entertainable by a Court of Small Causes in view of the provisions of Art. 31, Schedule 2, Small Cause Courts Act. The learned advocate relies for this on the decision in Uzir V/s. Hari Chand Pal AIR 1916 Cal 367 where a Division Bench of the Calcutta High Court held that a suit by one of the several joint landlords for recovery of sums which may have been collected by his co-sharers from the tenants in ex. cess of their legitimate share is not cognizable by a Court of Small Causes. The learned advocate for the petitioner rightly points out that the present suit is, in essential features, a suit of this mature. To this the learned advocate for the opposite party replies that this is a suit for an ascertained sum; but it will be observed that in the case that was before the Calcutta High Court the claim was also for an ascertained sum of Rs. 12 so that there is no difference between the facts of that case and the facts of this.