BIPIN CHANDRA MAJUMDAR Vs. RAJ KUMAR SINHA

JUDGEMENT

(1.) These two appeals arise out of the same suit. They are preferred by defendants 1 and 2 separately. The suit in which these two appeals arise was brought by the plaintiffs for recovery of arrears of rent of their eight annas share at the rate of Rs. 8 and odd for the years 1327 to the Pous kist of 1330 B. S. The claim was laid at less than Rs. 50. Defendants 1 and 2 appeared and said that they were not liable for the rent of this period as defendant 1 had made a gift of this property in favour of his sister one Basanta Kumari Sur who is defendant 3 in the present litigation so far back as 2nd Chait 1321 B. S. The defence of defendant 2 was that he sold his interest in the tenure to one Omar Ali who is defendant 4 in the present suit on 26 Sravan 1319 B. S. The Munsif held that the two transfers by way of gift and sale respectively were colourable transactions and that consequently defendants 1 and 2 were liable to the plaintiffs for the rent. The suit was accordingly decreed against defendants 1 and 2 only.

(2.) Against this decision two separate appeals were preferred by defendants 1 and 2 to the Court of the District Judge of Nokhali and the learned District Judge came to the conclusion that the two appeals by the two defendants were incompetent as the suit was valued at less than Rs. 50 and the Munsif who tries the suit was vested with final powers under Section 153, Ben. Ten. Act, He accordingly dismissed the appeals on the preliminary ground and held that he would not be justified in exercising his powers of revision under the provisions of that section. The result was that the appeals by the defendants were dismissed on the preliminary ground.

(3.) Against this decision of the learned District Judge the two defendants have preferred two separate appeals and the main contention which has been raised by the learned advocate for the appellants is that the lower appellate Court was clearly in error in holding that no appeal lay to him from the decision of the Munsif. It appears to me that this contention is well founded and must prevail. There was surely a question of title as between persons having conflicting claims thereto within the meaning of Section 153, Ben. Ten. Act. Defendants 1 and 2 disclaimed the liability for rent on the ground that they had transferred their interest to defendants 3 and 4 respectively. The question arose, therefore, in this suit as to whether the title as tenant lay in defendants 1 and 2 or in defendants 3 and 4. Plaintiffs were surely concerned with the decision of the question as to who was the person to whom they would look for the rent. There is a clear conflict between the plaintiffs and defendants 1 and 2 with regard to the relationship of landlord and tenant and defendants 3 and 4 whose title as tenant is set up by the appealing defendants are parties to the present case. The case will seem to be covered by a decision to which I was a party which is not fully reported but is reported in short notes in the case of Lakhi Narayan Das V/s. Jharu Mohan Santra [1927] 31 C.W.N 140 s.n. That case has been sought to be distinguished by the learned advocate for the respondents on the ground that there one of the tenants claimed a certain share in the tenancy whereas here both the tenants 1 and 2 disclaimed all liability with regard to rent. I fail to see the point of this distinction. There is really no distinction in principle.