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Madhavrao Moreshvar Pant Amatya Vs. Rama Kalu Ghadi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 798 of 1913
Judge
Reported inAIR1914Bom238; (1914)16BOMLR746
AppellantMadhavrao Moreshvar Pant Amatya
RespondentRama Kalu Ghadi
Excerpt:
provincial-small cause courts act (ix of 1887), schedule ii, article 13-suit to recover dues payable to a person by reason of his interest in immovable property-sum payable by inferior holder to superior holder-revenue jurisdiction act (x of 1876) section 5, clause (c)-civil procedure code (act v of 1908), section 102, order viii, rule 6-set-off, when allowed-set-off by pujari.;a suit for the recovery by an inamdar of sums payable by a khatedar in respect of certain immoveable property held by him, under the inamdar as his superior holder, is not cognizable by a court of small cause?, inasmuch as the sum payable by an inferior holder to a superior holder is a due payable to a person by reason of his interest in immovable property within the meaning of article 13, schedule ii, of the..........5, clause (c)). the moneys claimed, therefore, in this suit may appropriately be described as dues payable to the plaintiff by reason of his interest in immoveable property held by the defendant, and therefore article 13 of the schedule of the small cause courts act applies, and this was a suit not cognizable by a court of small causes. we, therefore, overrule the preliminary objection.2. the defendant does not contest the right of the plaintiff to payment of his dues as superior holder, but claims to be entitled to set off the stipend payable by the plaintiff to certain pujaris of a temple, of whom defendant was one. that stipend was payable to the defendant and his bhaubands. he, therefore, claims a set-off in a different capacity, in a different category to that in which he holds.....
Judgment:

Basil Scott, Kt., C.J.

1. This is a suit for the recovery by an Inamdar of sums payable by a Khatedar in respect of certain immoveable property held by him, under the Inamdar as his superior holder. It is contended that being for an amount less than Rs. 500, and cognizable by a Court of Small Causes, no second appeal will lie. The question is whether it is cognizable by a Court of Small Causes. We have been referred on the part of the appellant, to Article 13 of Schedule II of the Provincial Small Cause Courts Act IX of 1887 which excepts from the cognizance of a Court of Small Causes a suit to enforce payment of dues when the dues are payable to a person by reason of his interest in immoveable property. Now the sums payable by an inferior holder to a superior holder in the Bombay Presidency are in another Act of the Imperial Legislature characterised as dues (see Revenue Jurisdiction Act X of 1876, Section 5, Clause (c)). The moneys claimed, therefore, in this suit may appropriately be described as dues payable to the plaintiff by reason of his interest in immoveable property held by the defendant, and therefore Article 13 of the Schedule of the Small Cause Courts Act applies, and this was a suit not cognizable by a Court of Small Causes. We, therefore, overrule the preliminary objection.

2. The defendant does not contest the right of the plaintiff to payment of his dues as superior holder, but claims to be entitled to set off the stipend payable by the plaintiff to certain Pujaris of a temple, of whom defendant was one. That stipend was payable to the defendant and his Bhaubands. He, therefore, claims a set-off in a different capacity, in a different category to that in which he holds as tenant or Khatedar of the plain. tiff, and he cannot have the set off having regard to the provisions of Order viii, Rule 6. We, therefore, set aside the decree of the lower appellate Court which allowed the set-off claimed by the defendant. The plaintiff is entitled to Rs. 41-4-10 (Rs. 39-6-8, the amount of his claim, plus Rs. 1-14-2, the amount of costs incurred in the Revenue Court), with further interest upon Rs. 41-4-10. We do not think that he is entitled to his costs because this suit appears to us to have been unnecessarily filed having regard to the fact that he had already obtained decree in assistance suits.

3. No order as to costs throughout.


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