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Maharaja Bahadur Sing Vs. Felani Mai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1947Cal407
AppellantMaharaja Bahadur Sing
RespondentFelani Mai and ors.
Cases ReferredMahadeo Rai v. Kesho Pershad Singh
Excerpt:
- .....tenancy act, rent was assessed at a certain figure from the year 1345 b.s. onwards. he therefore claimed rent at the rate settled in the proceedings under section 105, bengal tenancy act, for the year 1345 b.s. the suit was instituted in the civil court, namely, in the court of the first munsif, dinajpur. the defendants admitted their liability to pay rent for the year 1345 b.s.; but stated that the civil court was incompetent to try the claim for use and occupation for the years 1342 to 1344 b.s.2. this defence was given effect to by the court of first instance which made a decree for rent in favour of the plaintiff for the year 1345 b.s. only. the learned district judge on appeal confirmed the decision of the munsif. a further appeal was taken to this court and was heard by our.....
Judgment:

Mitter, Ag. C.J.

1. The plaintiff is the appellant before us. He instituted the suit against the defendants for damages for use and occupation for the years 1342 to 1344 B.S. and for rent for the year 1345 B.S. The material statement is contained in para. 2 of his plaint. In that paragraph, he states that the defendants were in occupation of his khas lands without his consent and knowledge and had no rights in that land upto the year 1344 B.S. It is on this basis that he claimed damages for use and occupation for the said three years. He further stated that in a proceeding under Section 105, Bengal Tenancy Act, rent was assessed at a certain figure from the year 1345 B.S. onwards. He therefore claimed rent at the rate settled in the proceedings under Section 105, Bengal Tenancy Act, for the year 1345 B.S. The suit was instituted in the civil Court, namely, in the Court of the first Munsif, Dinajpur. The defendants admitted their liability to pay rent for the year 1345 B.S.; but stated that the civil Court was incompetent to try the claim for use and occupation for the years 1342 to 1344 B.S.

2. This defence was given effect to by the Court of first instance which made a decree for rent in favour of the plaintiff for the year 1345 B.S. only. The learned District Judge on appeal confirmed the decision of the Munsif. A further appeal was taken to this Court and was heard by our learned brother Khundkar J., sitting singly. He held that the second appeal was incompetent by reason of the provisions of Section 102, Civil P.C. He, however, expressed his views on the merits also and stated without giving any reason that the decree of dismissal in respect of the claim for use and occupation for the years 1342 B.S. to 1344 B.S. was right. He gave leave to appeal under Clause 15, Letters Patent.

3. In the view that we are taking, it is unnecessary to express any view on the question as to whether the second appeal was incompetent or not, because we think that on the merits our learned brother Khundkar J., is right. Section 15, Provincial Small Cause Courts Act, gives jurisdiction to a Court of Small Causes to try suits of a civil nature of every description save and except suits of the nature mentioned in the different items of Schedule II, provided the value of the suits do not exceed the sum of Rs. 500. Section 16 of that Act provides that a suit which can be tried by a Court of Small Causes shall not be tried by the civil Court.

4. Looking at the plaint, it is quite clear that the suit related to two distinct causes of action. The plaintiff's claim for the use and occupation of the land by the defendants for the years 1342 B.S. to 1344 B.S. was based on one cause of action and his claim for rent for the year 1345 B.S. on the other. In our view, the provisions of Section 16, Provincial Small Cause Courts Act cannot be allowed to be evaded by the plaintiff adding to his plaint a claim based on another cause of action which cannot be entertained by the Court of Small Causes. We will therefore have to examine the question as to whether the claim for use and occupation by the defendants for the years 1342 B.S. to 1344 B.S. was a claim which could be tried by a Court of Small Causes.

5. The learned Advocate appearing for the appellant contends that it could not be in view of the provisions of Article 8 of Schedule II of the said Act. That article is in these terms:

a suit for the recovery of rent, other than house rent, unless the Judge of the Court of Small Causes has been expressly invested by the Provincial Government with authority to exercise jurisdiction with respect thereto.

6. The question therefore is whether the claim for the years 1342 B.S. to 1344 B.S. could be regarded to be a claim in respect of rent that is to say, whether that part of the suit could also be regarded as a suit for the recovery of rent. Two cases have been cited before us by the learned Advocate for the appellant to support his contention that the claim for use and occupation for those years as made in the plaint is to be regarded as a suit for rent. They are the cases in Abdul Hakim v. Rajendra Narayan ('09) 13 C.W.N. 635 and Mahadeo Rai v. Kesho Pershad Singh 3 A.I.R. 1916 Pat. 38. In the first mentioned case the point was different. This Court had not to consider the question which we are considering. In the second mentioned case, namely Mahadeo Rai v. Kesho Pershad Singh 3 A.I.R. 1916 Pat. 38 the facts were as follows : In the plaint the plaintiff pleaded that the defendant was in possession of his khas land with his permission. In his written statement the defendant claimed that he was a tenant. The plaintiff's claim was a claim for use and occupation. The learned Judges of the Patna High Court in these circumstances held that the suit was to be regarded as a suit by a landlord to recover damages from a tenant for failure to make an agreement with him to pay a fixed sum as rent during the period of his occupation. That being, the position they held that the suit was to be regarded as a suit for rent of land within the meaning of the Bengal Tenancy Act, and therefore it was not cognizable by the Court of Small Causes being a suit coming within item 8 of Schedule II to the Act. In the plaint in the suit which we have before us the plaintiff, however, definitely stated that the defendants were in occupation of his khas land without his knowledge and consent and that they had for that period no right to the land at all. The phrase employed by him is 'bibader kona prakar sartt naie va thahite pare na.' The claim for use and occupation is therefore not made on the basis that the defendants were tenants of his but had not agreed to the actual amount of rent. The plaint on the other hand proceeds upon the footing that during those years the defendants had no rights whatsoever in the land and were trespassers pure and simple. That being the position we hold that the claim for use and occupation for those years is a claim which could be the subject-matter of a suit triable by the Court of Small Causes, and so could not be tried by any other Court. On these grounds we affirm the decision under appeal.

7. The result is that this appeal is dismissed with costs to the appearing respondents other than the respondents who have appeared through the Deputy Registrar.

Sharpe, J.

I agree.


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