1. This is an appln for leave to appeal to the S. C. from an appellate decree of this Ct dated 10-5-1950, affirming a decree of a learned Subordinate Judge made in favour of the pltfs.
2. The pltfs brought a suit for rent of a patni for the years 1350 to the Pous kist, 1352 B. S. at the annual rate of Rs. 5368/6/- with certain cesses. The defence to the suit was that the pltfs were not entitled to 16 annas of the landlord's interest, that a good portion of the land comprised in the tenure had been lost by diluvion & as such the defts were entitled to a substantial abatement of rent, & there was a further plea of payment.
3. The learned Subordinate Judge held that the pltfs were entitled to the 16 annas of the landlord's interest & that there had been no payment. On the question of diluvion the Subordinate Judge held that the deft had failed to prove what abatement in the rent he was entitled to.
4. Before a Bench of this Ct the only point argued was that the learned Subordinate Judge was wrong on this question of diluvion. This Ct was satisfied that certain land had been lost by, diluvion, but on the other hand it was of opinion that no abatement could be made in the rent because the original area of the patni was unknown & therefore it was impossible to say how much should be allowed per acre in abatement. In the result the appeal was dismissed in this Ct.
5. Mr. Mukherjee on behalf of the proposed applt contended that the value of the suit & of the proposed appeal are over Rs. 20,000/-. He has pointed out that the words in Article 133(1)(a) of the Constitution differ from the words in Section 110 of the C. P. C. Under Article 133(1)(a) what has to be considered is the value of the subject matter of the dispute in the Ct of first instance & still in dispute on appeal. Mr. Mukherjee has contended that the value of the dispute in the Ct of first instance was over Rs. 20,000/-.
6. The suit was a rent suit & the claim was for Rs. 12,800/- approximately & it appears to me quite clear that that was the value of the dispute. The defence was that the patnidars were entitled to an abatement & therefore liable to pay less than the amount claimed. It seems to me that the value of the subject matter of the dispute at its highest was Rs 12,800/- approximately, & if effect was given to the defence, the value of the claim would be substantially reduced. Mr. Mukherjee however has contended that a capitalised value should be given to his defence. For example, if he claimed that he was entitled to an abatement of, say Rs. 100/-a year, that claim should be capitalised at, for example, fifteen years' purchase which would make the value of that claim Rs 1500/-. That, according to Mr. Mukherjee the capitalised value of the defence as it were, also forms the subject matter of the dispute.
7. It seems to me that the dispute in this case was whether or not the pltfs were entitled to rent at the rate claimed for the period claimed. No claim was made as to the future & therefore what was to occur in the future was not & could not be in dispute. It seems to me quite impossible to capitalise, as it were, the value of the defence & include it in the value of the dispute. The value of the dispute in this case could not possibly exceed Rs. 12,800/-& therefore no leave can be given unless the case is one that falls within Article 133(1)(c) of the Constitution.
8. The point of law as to whether in the circumstances abatement of rent could be claimed was found in favour of the proposed applt. All that Mr. Mukherjee can complain of is that the learned Judges were wrong in holding that the proposed applt had failed to prove the area comprised in the patni which he had to do before the extent of the abatement could be arrived at. Mr. Mukherjee has pointed out that in the plaint the lands comprised in the patni are described with reference to khatians of the Cadastral Survey. He contends that there is an admission that the lands are as described & defined in the Cadastral Survey. Mr. Sen who appears for the resps has pointed out that the Bengal Tenancy Act requires plaints in a rent suit to refer to the Record-of-Rights & the survey documents & therefore there was no admission that the area of the lands comprised in the patni was the area as now shown in the Cadastral Survey. The patni was of the year 1913, whereas the survey was considerably later. There was no evidence to show that the Mouza as surveyed later was the same as it was at the date of this lease. Certain Revenue papers showed one area, whereas the survey records showed another. In those circumstances the Ct held that the proposed applt had failed to show the area of the patni, & that being so no abatement could be granted.
9. Whether the pleadings as drafted amounted to an admission or not cannot, I think, be said to be a point of any great public or private importance and is not the sort of question which would entitle us to certify this as a fit case for appeal. Mr. Mukherjee has to concede that unless he can bring the case under Article 133(1) of the Constitution no leave could be given. Even if it could be brought under Article 133(1), I do not think it could be possibly said that the case involved a substantive point off law which would be necessary before leave could be given in the case of a decree of affirmance, even though the value of the dispute was over Rs. 20,000/-.
10. In my view this appln must fail & I would dismiss it with costs -- the hearing-fee being assessed at four gold mohurs.
11. Let the counter-affidavit filed in Ct today, be kept on the record.
12. I agree.