SM SARAPATI DEVI Vs. BISHWANATH MISTRY

JUDGEMENT

(1.) This is an application on behalf of the plaintiff whose suit has been dismissed by the learned Small Cause Court Judge of Patna. The question raised is that the learned Small Cause Court Judge had no jurisdiction to entertain the suit. The plaintiff instituted the suit for reimbursement in these circumstances. The defendants are co-sharer landlords along with the plaintiff in respect of some garden. It is said that the defendants sold away the fruits of the garden for Rs. 190 to some persons Langra and Phulha and appropriated the entire amount and did not give the plaintiff's share which was six annas. Hence the suit to recover Rs. 71-4-0 being the plaintiff's share out of Rs. 190 together with interest and costs.

(2.) The defence was that all the co-sharers had sold the fruits and all had received the price according to their share and, therefore, nothing was due to the plaintiff. The learned Small Cause Court Judge came to the conclusion that the present suit was an outcome of enmity between the plaintiff and defendant 2, Acheylal Mistri, and that he was satisfied on the evidence that all the co-sharers had jointly sold the fruits of the garden and that they received the money value according to their shares, and that it was not established that Acheylal Mistri alone received the entire sale proceeds on behalf of all the co-sharers. The learned Judge believed the defendant, who was D.W. 1, specially when he was corroborated by Ram Gopal, D.W. 2, who also was a co-sharer of the other six annas. He also points out that at first the plaintiff stated in the plaint that the defendant had sold the garden to Barhu, but later on she amended the plaint and stated that the fruits were sold to Langra Turha and Phulwa Turha. Langra Turha has not been examined by the plaintiff to prove that he made over the entire money to defendant 2 nor was Langra or Phulwa made defendants in the action. Accordingly the learned Small Cause Court Judge dismissed the suit. Hence the application in revision.

(3.) The principal point argued by learned Counsel for the petitioner is that the learned Small Cause Court Judge had no jurisdiction to maintain the suit because under Art. 81, Small Cause Courts Act the present suit was not cognisable under the Small Cause Court jurisdiction.