BRIJNATH DUTT Vs. BARDA KANTA RAY

JUDGEMENT

(1.) The suit out of which this litigation has arisen was filed as a money suit in the Court of the Munsif at Dhanbad. It was then transferred to the Court of the Subordinate Judge and tried in the ordinary form. It is of value under Rs. 500 and being a suit for reimbursement, is of the nature of a Small Cause Court suit. The Subordinate Judge had small cause powers up to Rs. 500. Accordingly no appeal lay from his decision. Nevertheless an appeal was preferred to the District Judge of Manbhum. The appeal failed, but the cross-appeal by the plaintiffs was decreed with the result that defendants 10 to 12 who were the appellants in the Court below have preferred the present second appeal. The facts are briefly as follows: The Bakshis were brahmottardars under the Jharia Raj of a chak called Banskanali in mauza Jealgora at a rent of Rs. 8-8-0 and they were also liable to a cess of Rs. 49-0-6. In 1891 they granted a lease of the underground rights as well as of some surface rights to the plaintiff-respondents who may be called the Roys for an annual payment of Rs. 200. It was stipulated that the Roys should pay the rent and cesses to the Jharia Raj, the superior landlord, and should pay the balance to their own lessors, the Bakshis. In 1907 the Bakshis settled 261 bighas of the surface with the East India Coal Company for a payment of Rs. 1,300 and a reserved rent of Rs. 325, but this point is not of much importance in this litigation. In 1919 the Bakshis sold to defendants 10 to 12, who may be called the Dutts, the right to the annual payment of Rs. 200 from the Roys reserved under the lease of 1891.

(2.) The Roys realised the whole sum of Rs. 200 up to the Magh kist of 1332 B.S. The rent to the superior landlord payable by the Roys under the deed of 1891 not having been paid by them, the Jharia Raj brought a rent suit against the Bakshis for the period 1329 to 1332 B.S. and obtained a decree, and when the tenure was about to be sold, the Roys paid up the decretal amount to the superior landlord to save the tenure, and then initiated the present litigation making parties the Bakshis and the Dutts as well as the Chakravartis who however do not concern us. The learned Subordinate Judge, who evidently thought that the suit was a contribution suit, found that the Bakshis were liable to the Roys for the original amount of rent due but not for the whole amount sued for and decreed the suit accordingly against the Bakshis. As regards the Dutts, he held that they were not liable. As has already been stated, the Dutts nevertheless appealed, but when the appeal came to trial failed to press it. The plaintiffs however took the opportunity to file a cross-objection against the exclusion of the Dutts from the category of judgment-debtors and the learned District Judge of Manbhum sustained the objection and held that the Dutts also were liable. He pointed out that the learned Subordinate Judge was of opinion that if the plaintiffs paid rent amicably to the superior landlord, they would not be liable to pay to others the whole Rs. 200 reserved (which is certainly correct) but that they were not entitled to be reimbursed in this case by the Dutt defendants because they only paid in execution of a decree, and he negatived this latter view and included the Dutts also among the judgment-debtors from whom the plaintiffs could realise.

(3.) In second appeal there is a preliminary objection that no appeal lay to the District Judge and consequently no cross-appeal. This objection cannot be gainsaid. No appeal lay from the decision of the Subordinate Judge in a suit of a Small Cause nature within the pecuniary limits of his jurisdiction and that was the character of the plaintiffs suit and if no appeal lay, neither did the cross-objection in the appeal lie. That is however not an end of the matter since the whole litigation is before this Court and may well be considered in the light of our powers under Section 25, Small Cause Courts Act. Now it is not the practice of this Court to exercise such powers or revisional powers when it has arrived at the conclusion that the decision which is before it is sound on the merits. Manifestly the plaintiffs have been made to pay twice over money representing the rent to the superior landlord. One amount has gone to the landlord and another amount has gone to the Dutts who are only entitled to recover the balance of Rs. 200 payable by the plaintiffs after deduction of the rent to the superior landlord. The two sets of defendants may be left to decide the point inter se. Accordingly the decision of the District Judge is such as we would ourselves have been inclined to pass if the matter had come before us on the merits, and in the circumstances I should not be prepared to exercise any revisional or similar discretion in favour of the appellants. I would dismiss this appeal with costs: hearing fee one gold mohur. Mohamad Noor, J.