Skip to content


Sh. Daliluddi Vs. Syed Matahar Ali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1928Cal254
AppellantSh. Daliluddi
RespondentSyed Matahar Ali
Excerpt:
- .....it certainly appears from the judgment that there has been a decision as regards the amount of the jama payable in respect of this tenancy. the only difference between this case and cases of the type that ordinarily come up before the courts is that in the latter class of cases the jama alleged on behalf of the plaintiff is more than what is alleged on behalf of the defendant and in this particular case the position is reversed on account of its peculiar circumstances. the fact, however, remains that the question of the amount of rent annually payable has been decided. in this view of the matter i am of opinion that an appeal lay from the decision of the learned munsif.3. the rule is accordingly made absolute, the decision of the learned district judge is set aside and it is directed.....
Judgment:

Mukerji, J.

1. This rule relates to a suit for rent which was tried by the Munsif, Second Court, Madaripur. The suit was valued at Rs. 15 odd. The Munsif decreed the suit. The defendant preferred an appeal to the District Judge and the learned Judge held that the appeal was not maintainable in view of the provisions of Section 153, Ben. Ten. Act. He held that the trial Court could not be considered to have decided any question of the amount of rent annually payable. The rule has been issued to show cause why this order of the learned District Judge should not be set aside upon the grounds first,

that the decision of the learned Munsif having decided a question of the amount of rent annually payable, the learned Judge ought to have held that he had jurisdiction to hear the appeal,

and, second

that the Court of appeal below ought to have held that the Court of first instance has also decided a question of title to or interest in 12 acres of land between the plaintiff and the defendants in this case and, therefore, the appeal was competent.

2. So far as the second of these grounds is concerned, I may say at once that I do do not feel pressed by the argument advanced in support of it. As regards the first ground the position seems to be different. The facts relevant for the purposes of that ground are these : The plaintiff claimed rent in respect of this tenancy alleging that it comprised an area of 41 acres and bore a rental of Rs. 3 per year. His case was that originally the jama consisted of 53 acres of land and the rental was Rs. 4, but that afterwards 12 or 13 acres of land were taken out of this jama for digging a tank thereon and the plaintiff paid Rs. 30 for the said quantity that was thus taken; and further that on account of this reduction in the area of the jama the rental was reduced by Re. 1. The defendant's case on the other hand, appears to have been that the area of the jama was 53 and that the rental was Rs. 4 as is evidenced by the settlement khatian, Ex. 4-A. The defendant, besides setting up various other defences, also contended that there ought to be a total suspension of rent inasmuch as he had been dispossessed from a portion of the lands of the jama. The questions which had necessarily to be determined, amongst others, in order to dispose of this suit were : whether the relationship of landlord and tenant existed between the parties, whether the plaintiff's allegation that the original jama of Rs. 4 was reduced to Rs. 3 in consequence of a portion of the lands of the jama having been taken by the plaintiff for digging a tank and whether the rent at the aforesaid rate, as was alleged on behalf of the plaintiff, was due from the defendant or not. Without determining the question whether the jama bore a rental of Rs. 3, as was the case put forward on behalf of the plaintiff, or it bore a rental of Rs. 4 and consisted of additional lands in which case the plaintiff perhaps would not have been entitled to a decree, no decision could be arrived at on the merits of the plaintiff's claim. It is true that there is no declaration in the order or in the decree as to amount of rent that is annually payable by the defendant to the plaintiff in respect of the jama. But having regard to the wording of the exception contained in Section 153 it does not appear that any such declaration is necessary in order to bring the case within the exception. It is sufficient if a question as to the amount annually payable has been decided in the decree or order. It certainly appears from the judgment that there has been a decision as regards the amount of the jama payable in respect of this tenancy. The only difference between this case and cases of the type that ordinarily come up before the Courts is that in the latter class of cases the jama alleged on behalf of the plaintiff is more than what is alleged on behalf of the defendant and in this particular case the position is reversed on account of its peculiar circumstances. The fact, however, remains that the question of the amount of rent annually payable has been decided. In this view of the matter I am of opinion that an appeal lay from the decision of the learned Munsif.

3. The rule is accordingly made absolute, the decision of the learned District Judge is set aside and it is directed that the appeal which the petitioner had filed in the Court of the learned -District Judge from the decision of the Munsif be now heard and dealt with in accordance with law. Costs of this rule, one gold mohur, will abide the result of the appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //