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Doorga NaraIn Sen Vs. Ram Lall Chhutar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1881)ILR7Cal330
AppellantDoorga NaraIn Sen
RespondentRam Lall Chhutar
Cases Referred and Kashee Ram Doss v. Maharanee Sham Mohinee
Excerpt:
appeal - bent suit under rs. 100--title-- beng. act viii of 1869, section 102--civil procedure code (act x of 1877), section 622. - .....rightfully entitled to the property in which the defendants had tenures and both of them brought rent suits against the tenants. these rent suits came first before the subordinate judge, and afterwards before the district judge. subsequently to the institution of those rent suits, doorga narain brought a suit against banimadhub to establish his title, and whilst that suit was pending, the district judge allowed the rent cases to stand over, thinking he might decide them in accordance with the decision which might be arrived at in the title suit. he decided the suit between doorga narain and banimadhub in banimadhub's favour, and immediately after the rent suits were called on, and the learned judge decided those instituted by banimadhub in favour of banimadhub, and dismissed the suits.....
Judgment:

Pontifex, J.

1. A preliminary objection was taken to the hearing of these, appeals, on the ground that, under Section 102 of Beng. Act VIII of 1869, no second appeal would lie in these cases. We think that this objection must prevail. The facts of the case are---that two persons, the plaintiff Doorga Narain and one Banimadhub, were contesting with one another as to who was rightfully entitled to the property in which the defendants had tenures and both of them brought rent suits against the tenants. These rent suits came first before the Subordinate Judge, and afterwards before the District Judge. Subsequently to the institution of those rent suits, Doorga Narain brought a suit against Banimadhub to establish his title, and whilst that suit was pending, the District Judge allowed the rent cases to stand over, thinking he might decide them in accordance with the decision which might be arrived at in the title suit. He decided the suit between Doorga Narain and Banimadhub in Banimadhub's favour, and immediately after the rent suits were called on, and the learned Judge decided those instituted by Banimadhub in favour of Banimadhub, and dismissed the suits of the plaintiff Doorga Narain. He says:---'It has been found in the ease as to title that Banimadhub has all along been entitled to the rents, and the decreeing of the present appeals will give them to him. It has been argued that if the ultimate decision as to title in a possible special appeal should be in favour of Doorga Narain, the present decision will complicate any suit for mesne profits that Doorga Narain might bring against Banimadhub. But I do not think, that a Court is justified, when giving present judgment, in considering such remote contingencies, which may never in fact come into being.' We think, nevertheless, that if the, learned Judge had been applied to, to appoint a receiver in the suit between Doorga Narain and Banimadhub, on the supposition that possibly an appeal might be preferred against his decision in that suit, he would have done so, and so secured the rents payable by the tenants. But the learned Judge was never applied to, to secure the rents, and consequently the decrees dismissing. Doorga Narain's rent suits were made. Now it is admitted that the suits are for less amounts than Rs. 100, but it is argued that these are suits in which a question relating to title to land as between parties having conflicting claims thereto, has been determined by the judgment. The plaintiff urges that such a question has been decided in these cases, but in fact it was not in these suits that any question of title as between parties having conflicting claims was determined. That question was determined in the previous title suit between Doorga Narain and Banimadhub. No such question was determined in this suit. We think, therefore, that these cases fall within the provisions of Section 102 and that no second appeal would lie. It has been decided in the cases of Shaikh Dilbur v. Issur Chunder Roy (21 W. K., 36,) Donzelli v. Tekan Nodaf (23 W. E., 227), and Kashee Ram Doss v. Maharanee Sham Mohinee (2 C. L. E., 558), that where A sues B for rent of land, and B pleads that the rent of the land is payable to C and not to A, and where C is not made a party to the suit in which a decree is passed against B, no question relating to title to land as between parties having conflicting claims thereto is determined by the judgment in such suit. Therefore, there is authority to show that the preliminary objection taken in these cases is valid, and must prevail.

2. It has then been argued on behalf of the plaintiff that, if that is the case, then there is really no judgment of the Court below in these rent cases, because the judgment of the learned Judge depends entirely upon his judgment in the other suit between Doorga Narain and Banimadhub, and he had no right to impart that into a suit between Doorga Narain and the tenants; and it is argued that the plaintiff would have a right, under Section 622 of the Code of Civil Procedure, to ask this Court to set aside the judgment of the Judge on the ground of irregularity. Now, even if we were to permit the appellant in these appeals to rely upon the provisions of Section 622 without putting him to the expense of making a separate application in order to get the benefit of that section, we do not think these are cases in which we would be justified in inter(sic)ffing under Section 622. H(sic)irs co u(sic)s, tnafc (sic)s. x(sic)ViWjje^g. Act VIII of 1869 was enacted res(sic) Protect Parties in the position of ryot-defendants, to prevent their being yn(sic)agTnn up to the High Court in cases where the decree or decree or demand was under Rs. 100. In such cases the decree was intended to have the same effect as that of a Small Cause Court; and we think it would be very hard in these cases, merely because the Judge has decided between the parties on the ground of the former decision between Doorga Narain and Banimadhub to put the ryots to the very great expense of being dragged into this Court. We think, therefore that even under Section 622 we should not be inclined to interfere in these cases. The preliminary objection must prevail, and the Appeals Nos. 1670, 1675 and l684 will be dismissed with costs, and others without costs, as the respondents in those cases have not appeared.


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