DHARAM NATH MISSIR Vs. MANGLA PERSHAD SINGH

JUDGEMENT

(1.) THESE two second appeals Nos. 218 and 219 of 1934 arise out of two suits for rent numbered respectively 887 and 888. The defendants in both suits pleaded that they were entitled to a deduction of certain amount from the rent claimed as mafi. It was not specified in the written statement whether the claim was on the basis of their being jeth-raiyats or being Brahmins to whom the zamindar had agreed to make a deduction from the normal rent. The fact that mafi was allowable in respect of the two holdings in suit was recorded in the Record-of- rights, and the 1 Court, finding that there was evidence that until 1335 mafi had actually been allowed to the defendants and that until 1332 at least they had been performing the duties of jeth-raiyats, held that they were entitled to the deduction claimed as jeth-raiyats. In appeal the learned Subordinate Judge has disallowed the claim. With regard to suit No. 887 he was mistakenly under the impression that the suit had not been contested by defendant 1 and with regard to suit No. 888 he disallowed the claim for a reason which it is difficult to understand. He said that the defendant in this suit had recently acquired a proprietary share in the village, and that from this he deduced that it was beneath dignity of this defendant to render the services required of him as a jeth-raiyat. That there was no evidence to the effect that the defendant had refused to perform the duties either for this or any other reason does not appear, so that the only ground on which the learned Court below has disallowed the plaintiff's claim is one that is not sustainable on the evidence.

(2.) IT was contended by the learned Advocate for the respondent however that no second appeal lay in this case, relying on the decision in Safait Hussain v. Waizuddin 1917 Pat 504, in which it was hold that mafi is not rent but a payment for services rendered and therefore that in a case where mafi is claimed, the amount of rent is not in question in dispute between the parties withinthe meaning of the exception to Section 153, Ben. Ten. Act. IT has been pointed out however in a later case Jagdish Missir V/s. Maharaja Sir Rameshwar Singh 1920 Pat 212, that, that exception does not apply to a case in which the man is claimed not as a personal right of a tenant but as an incident of the holding and as a deduction which they are entitled to make from the rent claimed by the landlord. In the present case the claim to deduct mafi was not pleaded on the basis of its being an incident of the defendant's holding. In these second appeals however the learned Advocate for the appellants has contended that the real ground on which the mafi was given in this case is that the defendants were Brahmins and not that they were under an obligation to render services as jeth raiyats. That however has been negatived by both Courts. In view of the pleadings in the case, it is not possible to hold that the decision in Jagdish Missir V/s. Maharaja Sir Rameshwar Singh 1920 Pat 212 applies. The result is that the Case is governed by the earlier decision in Safait Hussain V/s. Waizuddin 1917 Pat 504, and as the amount claimed in each of the suits was less than Rs. 100, the appeals are barred by Clause (a), Section 153, Ben. Ten. Act. Appeal No. 219 is dismissed without costs as the respondent has not appeared, and Appeal No. 218 with costs. Leave to appeal is refused.