BHAVAN LALLU Vs. UMAR MAHOMED BHAIJI

JUDGEMENT

(1.) The plaintiff here sues for possession under a rent-note. The defence is that the rent-note is only a part of other documents forming one transaction, and that if all the documents are looked at, it will be found that the transaction was an illegal one inasmuch as it amounted to an alienation of an unrecognised sub-division of a bhag contrary to the express provisions of Section 3 of Bombay Act V of 1862. The plaintiff retorts that the defendants being tenants under the rent-note are estopped under Section 116 of the Indian Evidence Act. Accordingly, issue No. 1 was raised on that point, viz., "Whether it is open to the defendants to raise the plea about the void nature of the transaction and about its having been passed for interest without first surrendering possession to the plaintiff."

(2.) In the trial Court the learned Subordinate Judge decided that issue in the negative. Consequently, the evidence which the defendants wanted to adduce in support of the remaining issues was shut out, except to this limited degree that by some blunder the plaintiff's pleader allowed certain mortgages which formed part of the documents relating to this transaction to be let in in evidence, although, strictly speaking, having regard to his plea of estoppel, he ought to have objected to their being exhibited. But when the defendants tendered other documents to show that the suit property was an unrecognised bhag and tendered other evidence in support of their defence, this was rejected.

(3.) The lower appellate Court reversed the decree of the trial Court, and remanded the case for a decision on the merits. The alleged landlord appeals. A preliminary objection is taken by the alleged tenants that no appeal lies. But we think that here the case was decided on a preliminary point within the meaning of Order XLI, Rule 23, and that consequently an appeal lies to us under the provisions of Order XLIII, Rule 1 (u).