UPENDRA NANDAN DAS MAHAPATRA Vs. BANAMALI CHARAN PATI

JUDGEMENT

(1.) The facts of the suit out of which this appeal has arisen are these: The plaintiff sued the defendant for what he described as dasturat. He stated that the defendant's predecessors were in possession of mouza Maisagote with Mehal Padima, by right of purchase from the plaintiff's predecessor. That he and his predecessor had been realizing amicably and by suit in an annual sum of Rs. 28- 12-6 as dasturat and cesses from the predecessors of the defendants and the defendants in respect of the said mauza. The defendants had not paid the amount and hence the suit.

(2.) The defendants admitted that they were in possession by purchase and that they never agreed to pay for ever any dasturat to the plaintiff. This dasturat forming a separate amount was realized from the tenants in addition to the rent they had to pay. That amount was paid to Sashimukhi during her lifetime and her successors had no right to get the same, nothing now being realized from these tenants and that as the defendants cannot realize the amount from the tenants, the plaintiffs are not entitled to get it. The first Court decreed the plaintiffs suit on 18 August 1921.

(3.) The defendants appealed. This appeal was heard exparte and was decreed. There was then an application under Order 41, Rule 19, for re-admission of the appeal. This was rejected. Under Order 43, Rule 1(t), the plaintiffs appealed to this Court and the appeal was allowed and the appeal ordered to be reheard. It was heard by the District Judge of Midnapur and decided on 2 December, 1924, when that learned Judge allowed the appeal in part and modified the decree. Against the decree the defendants have appealed. A preliminary objection has been raised that no appeal lies, an appeal being barred by the provision of Section 102, Civil P.C. Against this the following arguments have been adduced: (1) that the plaintiffs- respondents described the suit as a suit for rent and hence they are now estopped from arguing that it is a suit for money and so no appeal lies. The simple answer to the contention is that it is quite immaterial whether the plaintiffs are or are not estopped. The Court cannot entertain an appeal which is barred by an express provision of the law. The parties cannot by their conduct give the Court a jurisdiction which it does not possess. (2) The next contention is that the appeal against the District Judge's order was once entertained by a Bench of the Court (Greaves and Graham, JJ.) and so the question whether an appeal does or does not lie has already been determined. This contention is based on an obvious misunderstanding of the facts. The first appeal to this Court which was determined by Greaves and Graham, JJ., was not an appeal against the decree in the suit, but against the order of the District Judge refusing to re-admit the appeal under Order 41, Rule 19, an order against which an appeal lies in every case under Order 43, Rule 1(t).