BIBHUTI BHUSAN RAI Vs. CHINIBAS MAKHAL

JUDGEMENT

(1.) THIS Rule was issued at the instance of the decree-holders in a suit which purports to be one for rent. The decree was obtained against two judgment-debtors who are the sons of one Prem Chand whom the decree-holders admit to be the original tenant. He died leaving behind him three sons, namely, the judgment-debtors and another son by another wife, Chinibas by name, who was a minor step-brother of the two judgment-debtors and who is the opposite party before me. The rent suit was brought on the basis of a kabuliyat said to have been executed by the two step-brothers of the opposite party. The opposite party preferred a claim on the 26 May 1926, claiming possession of the one-third share in the homestead which was attached by the decree-holders in execution of their so called rent decree, and the claim was allowed by the Munsiff to the extent of one-third of the homestead. Against this order allowing the claim this petition for revision has been put in and a Bale was issued on the ground that as the decree was a rent decree, Order 21 Rule 58 of the Civil P. C. was not applicable having regard to the provisions of Section I43 read with Section 170 of the Bengal Tenancy Act. THIS objection to the jurisdiction of the lower Court to entertain the claim as the decree was a rent decree was not taken before the lower Court. The opposite party does not accept the position that the decree was a rent decree; on the other hand from the admitted fact that the tenancy originally belonged to the father of the judgment-debtors and the opposite party and that the decree was obtained against the two judgment-debtors alone, and in the absence of any evidence as to the relinquishment by the opposite party of his rights in his father's homestead, it would be difficult to hold that the decree obtained by the petitioner was a rent decree. The question of jurisdiction depends upon disputed facts and if the question had been raised in the lower Court the facts would have been ascertained, I am not prepared to interfere, therefore, with the order of the lower Court under revisional jurisdiction, and allow the question of want of jurisdiction of the lower Court to be raised for the first time here.

(2.) THE Rule is accordingly discharged with costs. I assess the hearing fee at one gold mohur.