(SHEBAIT) HARI PROSANNA BARMAN Vs. NISHAPATI SAI

JUDGEMENT

(1.) This appeal has been preferred from the decree of the Subordinate Judge of Burdwan affirming on appeal the decree passed by the Munsiff,, 4 Court, Burdwan. The appeal arises out of a suit for rent. The plaintiff instituted the suit for rent for recovery of paddy rent for two years, namely, 1330 and 1331 at the rate of two maps one sali of paddy per annum with cesses and damages. The suit was instituted on the allegation that the defendant's tenancy consisted of two plots of land. The defence set up was that of the two plots, -- Nos. 1 and 2 mentioned in the plaint, No. 2 did not form a part of the tenancy but a different plot of which the plaintiff was in possession of a part of it instead, and so the rent should be suspended. It was also pleaded on behalf of the defence that under an arrangement between the parties the defendant was in possession of plot 1 only for which he had to pay only half the rent. The trial Court held that plot 2 of the plaint did not appertain to the jama and that the other plot of the jama which was not mentioned in the plaint was in the landlord's possession, but as there was sub-division of the jama the defendant was not entitled to get any suspension or abatement of rent and the defendant therefore was liable to pay half the rent. The learned Munsiff therefore made a decree in favour of the plaintiff at the rate of half the rent claimed; namely, for two maps, 1 sali of paddy as rent for the two years in suit together with cesses and damages Calculating the price at a certain rate and on the basis of a certain standard, to which it is not necessary to refer as no objection has been taken there to here, the learned Munsiff gave the plaintiff a decree for Rs. 25-1 anna and 7 pies together with proportionate costs and interest at 6 percent per annum.

(2.) This decree, as I have already stated, has been affirmed on appeal by the Subordinate Judge

(3.) The learned Subordinate Judge has not thought it necessary to go into the question as to whether plot 2 of the plaint appertained to another jama or not, or whether the other plot which the defendant said formed part of this tenancy was one in respect of which the plaintiff had dispossessed the defendant because he found that there was subdivision of the jama and that in consequence thereof the defendant was liable to pay half the rent claimed in the suit for being in possession of plot 1. It is this finding on the question of sub-division which both the Courts below have arrived at and recorded in their judgment that is challenged before me in this second appeal