1. In this case the plaintiffs sued to recover the value of a moiety of a taluq under the following circumstances. The landlord, who is the Maharajah of Tipperah, brought a suit for the rent of the taluq against Ram Comul Sen. He obtained a decree for Rs. 44-8, being the amount of rent in arrears; and, in execution of that decree, he brought the taluq to sale. It was purchased by one Nobo Coomar Eoy for the sum of Rs. 800. The plaintiffs' contention is that, although they were not made parties to the rent suit, nevertheless they had a half share in the taluq, and that they are therefore entitled to Rs. 400, the value of the half share.
2. A preliminary objection was taken to the hearing of the appeal, it being contended that this is a suit of the Small Cause Court class, and therefore the amount in dispute being less than Rs. 500, no second appeal lies to the High Court.
3. We have considered this preliminary objection, and the conclusion at which we arrive is, that this is not a suit of the Small Cause Court class; in other words, that it is not a suit coming within the purview of Section 6 of Act XI of 1865. According to that section the following suits are cognizable by a Court of Small Causes, viz., 'claims for money due on a bond or other contract, or for rent or for personal property, or for the value of such property, or for damages, when the debt, damage or demand does not exceed in amount or value the sum of Rs. 500.' We think it impossible to say that the present suit is a suit for money due on a 'contract,' having regard to the meaning of the term as expounded in a number of decisions of this Court. We may further observe that the words 'bond or other contract' seem to indicate that the 'contract' here spoken of must be ejusdem generis with a bond; in other words, a true contract as opposed to a quasi-contract or an obligation in the nature of a contract. Then that the words 'personal property' are not applicable would appear from the words which immediately follow 'for the value of such property,' for if money was intended to be included in personal property, it would have been unnecessary to insert the words 'for the value of such property' immediately after the words 'personal property.' Then we think it impossible to say that this suit is a suit for damages within the meaning of the section, and there is a further consideration. The suit is clearly for the value of immoveable property, and while the section distinctly enumerates 'the value of personal property' as a subject matter of a suit which may be brought under the section, there is nothing about the value of immoveable property. The reasonable construction, therefore, is that the value of immoveable property was not intended to be within the purview of the section. The conclusion at which we arrive then is that the suit is not a suit of the Small Cause Court class, and that a second appeal does lie. We have been referred to the case of Mata Prasad v. Gauri I.L.R. 3 All. 59 but we are unable to concur with the conclusion arrived at by the learned Judges who decided that case.
4. Turning now to the facts, it appears that, on a previous occasion, the Maharajah brought this very taluq to sale in execution of a decree for rent obtained in a suit to which the present plaintiffs were not parties; and that they successfully asserted their right to a moiety of the taluq in a suit which came up in appeal to the High Court. In that suit the defendant in the present case was a party, and therefore he is estopped from saying that the plaintiffs have not a moiety of the taluq. The decision in that case is, we think, of no value to show what was sold in the present case, a purpose for which it has been, to some extent, used in the Court below. But upon referring to the sale certificate it appears to us clear that what was sold on the present occasion was the whole of the taluq, and as the defendant has adopted that sale by taking away the whole of the surplus purchase-money, notwithstanding that the plaintiffs gave him notice to abandon his right to one moiety, and allow them (plaintiffs) to take out this moiety from the Civil Court, we think it inequitable that the defendant should be allowed to retain the whole value of the taluq, when it has been already decided between the parties that the plaintiffs have title to a moiety of the taluq itself. Under these circumstances, we think that the decree of the Court below must be set aside, and this appeal decreed. The plaintiffs will have a decree for one moiety, not of the Rs. 800 for which the taluq was sold in the execution sale, but of the surplus sale proceeds, Rs. 738-10-9. As the plaintiffs have elected to adopt the sale, they cannot equitably claim more than a moiety of the sale proceeds which remain after satisfying the rent decree.
5. The plaintiffs will have their costs in all the Courts.