1. The facts of the suit out of which this appeal has arisen are these:
The plaintiff sued the defendant for what he described as dasturat. He stated that the defendant's predecessors were in possession of mouza Maisagote with Mehal Padima, by right of purchase from the plaintiff's predecessor. That he and his predecessor had been realizing amicably and by suit in an annual sum of Rs. 28-12-6 as dasturat and cesses from the predecessors of the defendants and the defendants in respect of the said mauza. The defendants had not paid the amount and hence the suit.
2. The defendants admitted that they were in possession by purchase and that they never agreed to pay for ever any dasturat to the plaintiff. This dasturat forming a separate amount was realized from the tenants in addition to the rent they had to pay. That amount was paid to Sashimukhi during her lifetime and her successors had no right to get the same, nothing now being realized from these tenants and that as the defendants cannot realize the amount from the tenants, the plaintiffs are not entitled to get it. The first Court decreed the plaintiffs' suit on 18th August 1921.
3. The defendants appealed. This appeal was heard exparte and was decreed. There was then an application under Order 41, Rule 19, for re-admission of the appeal. This was rejected. Under Order 43, Rule 1(t), the plaintiffs appealed to this Court and the appeal was allowed and the appeal ordered to be reheard. It was heard by the District Judge of Midnapur and decided on 2nd December 1924, when that learned Judge allowed the appeal in part and modified the decree. Against the decree the defendants have appealed. A preliminary objection has been raised that no appeal lies, an appeal being barred by the provision of Section 102, Civil P.C.
Against this the following arguments have been adduced: (1) that the plaintiffs-respondents described the suit as a suit for rent and hence they are now estopped from arguing that it is a suit for money and so no appeal lies. The simple answer to the contention is that it is quite immaterial whether the plaintiffs are or are not estopped. The Court cannot entertain an appeal which is barred by an express provision of the law. The parties cannot by their conduct give the Court a jurisdiction which it does not possess.
(2) The next contention is that the appeal against the District Judge's order was once entertained by a Bench of the Court (Greaves and Graham, JJ.) and so the question whether an appeal does or does not lie has already been determined. This contention is based on an obvious misunderstanding of the facts. The first appeal to this Court which was determined by Greaves and Graham, JJ., was not an appeal against the decree in the suit, but against the order of the District Judge refusing to re-admit the appeal under Order 41, Rule 19, an order against which an appeal lies in every case under Order 43, Rule 1(t).
4. It has been argued that if there was no appeal against the decree there could be no appeal against an order refusing to rehear the appeal. That the appeal against the order is quite independent of whether there is or is not an appeal against the decree is clear from a comparison of Order 43, Rule 1(c), (d), (u). I now pass on to a consideration of the question whether Section 102 is a bar. The appellant contends it is a suit for rent or in all events that Article 13, Schedule 2, is a bar.
5. To deal with the first contention that it is a suit for rent and hence Article 13, Schedule 2, is a bar. A definition of rent will be found in Section 105, T.P. Act, and Section 3(5), Bengal Tenancy Act. Both definitions presuppose the relationships of lessor and lessee or landlord and tenants between the parties. In the present case no doubt the plaint is headed: Plaint under Section 148, Ben. Ten. Act. But a consideration of the statement of facts both in the plaint and in the written statement makes it quite clear that the relationship of landlord and tenant does not exist between the parties. The plaintiff's own case is that the property was sold to the defendants. A sale implies a complete transfer of ownership.
6. Neither is there in the plaint any suggestion that the relationship of landlord and tenant exists. The amount is, therefore, not rent. It is then contended that the suit falls within Article 13 of the Schedule. Article 13 deals with a suit to enforce the payment of the allowance or fees respectively called malikhana or haqq or cesses or other dues when the cesses or dues are payable to a person by reason of the interest in immovable property or in a hereditary office or in a shrine of other religious endowment.
7. It does not seem op the facts that the dasturat and cesses are paid by reason of the plaintiff's interest in any immovable property. The plaintiff, on his own statement, has no interest in the defendant's property. The property has been sold to the defendant and by the sale all the interest that, the plaintiff had in the property passed to defendant. For whatever reason the money might be due to the plaintiff, if due it is not on account of any interest in immovable property. The suit does not fall within Article 13. It is not contended that it falls under any other article of the schedule. It follows, therefore, that it is a suit of the nature cognizable by a Small Cause Court arid being under the value of Rs. 500 no second appeal lies. That being so, in my opinion, the appeal should stand dismissed with costs. The result is that the appeal stands dismissed with costs.
8. I am sorry I do not agree.
9. The appeal arises out of a suit which was instituted by the plaintiffs for recovery of dasturat, cesses and damages. The trial Court decreed the suit. The defendant appealed and the appeal was-allowed exparte the plaintiffs' suit being dismissed. The plaintiffs then applied for having the ex-parte decree set aside and for the re-hearing of the appeal, but this application was rejected. They then appealed to this Court which set aside the said ex-parte decree and ordered the appeal to be reheard. That was done by the lower appellate Court. That Court modified the decree of triatrial Court by awarding the plaintiffs a decree for da9turat for three years only. The defendants have now preferred this second appeal.
10. The plaintiffs-respondents have taken a preliminary objection that the appeal is not maintainable, being barred by Section 102, Civil P.C. They have clutched at a passage in the judgment under appeal which says dasturat is not rent. This was said for restricting the decree to a period of three years from four, which was the period for which the plaintiffs laid their claim and obtained a. decree from the trial Court. From this the respondents argue that the suit was suit for money - a suit of a nature cognizable by a Court of Small Causes and that therefore, a second appeal is barred. TO answer this preliminary objection the appellants have relied upon a variety of matters, to all of which I do not propose to refer. In my opinion the preliminary objection is of no substance.
11. What dasturat exactly means is a question on which, notwithstanding repeated enquiries, I have failed to elicit any satisfactory answer from either of the parties. As far as I can understand the word is a plural of the word 'dastur' which is a Persian word meaning 'dues.' The plaintiffs in the plaint merely stated : That the predecessors of the defendants having obtained the mauza under purchase from the predecessor of the plaintiffs the defendants have been exercising their rights and possession therein (para. 1); that the plaintiffs' predecessor was all along getting from the defendants' predecessors and also, from the defendants Rs. 28 odd as dasturat and annas H odd as cesses every year amicably or by suit (para. 2); that the plaintiffs have inherited the right from their predecessor (para, 3). This is all the information that the plaintiffs have chosen to give us of this dasturat in their plaint. They have headed the plaint as a 'plaint in a suit under Section 148, Ben. Ten. Act.' They have described their claim in this plaint as 'zemindari dasturat.' They laid their claim in the plaint for a period of four years. Their claim is for dasturat and for cesses. They also claimed damages at the rate of 25 per cent. If the character of the suit is to be judged from the plaint alone, as in the first instance it must be, the suit must be taken as haying been commenced by the plaintiffs as a suit for rent. To these should be added a few more facts. In the written statement the defendants alleged that the tenants of the mauza used to pay in addition to the rent a cess on account of dasturat and that is what the plaintiffs' predecessor used to get from the defendants and their predecessors : but (1) that the plaintiffs as heirs of their predecessor are not entitled to get it; (2) that dasturat is an illegal cess which can no longer be realized from the tenants and so the plaintiffs cannot get it, and (3.) that the plaintiffs are not entitled to get it as they have not got it recorded as a jama fit to be realized. The written statement, therefore, proceeds on the assumption that it is some sort of dues arising put of land, which if realizable at all are realizable only because of the fact that the mauza at one time belonged to the plaintiff's predecessor. Again, when the suit was decreed by the trial Court and the defendants preferred an appeal in one of their grounds of appeal they said:
The Court below was wrong in decreeing the suit for damages and for cesses. The plaintiffs are not entitled to get any decree for cesses or damages. The defendants are the maliks of the mauza and there is no relationship of landlord and tenant between the plaintiffs and defendants and, therefore, the plaintiffs are not entitled to a decree for dasturat rent or for any rent at all.
12. The Court below should have dismissed the plaintiffs' suit holding that the defendants are not liable therefor. Next we have it that the parties fought the case in all the Courts up till now on the footing that dasturat is some sort of rent. The Munsif has referred to the suit as 'a suit for recovery of dasturat rent,' and on that basis he gave the plaintiffs a decree for four years. He noted in his judgment that the amount was claimed 'on account of use and occupation of land by the defendants' and that therefore it should be treated as 'rent'. When the matter came up before this Court the learned Judges (Greaves and Graham, JJ ), were given to understand that 'the suit was commenced by the plaintiffs against their tenants for the recovery of rent.' All these leave not; the faintest shadow of a doubt that whatever may be the exact character of the defendant's liability to pay dasturat and cesses to the plaintiff, it is founded on some sort of conception that notwithstanding the sale of the mauza by the plaintiffs' predecessors to the defendants' predecessors some sort of interest in the mauza was retained by the former which entitled them to realize the amount every year from the latter; and that the transaction created in the latter some sort of obligation to pay rent to the former; or in other words that the transfer that was made bad not the effect of substituting the defendants' predecessors entirely in the place of the plaintiffs' predecessors but gave them all the rights of absolute owners of the mauza subject to the reservation of their liability to pay the said amount. To judge of the effect of this transfer by the definition of sale' as given in the Transfer of Property Act, is in my opinion an anachronism and a fallacy; and to apply to the transaction the juridical conception of an out-and-out sale is not permissible, I am fully conscious of the principle that no amount of estoppel to which the respondent may be subject, even if any question of estoppel really arose in the case, would give this Court jurisdiction to entertain an appeal which it has not under the law; but I am not prepared to assume against the appellants that it was merely a contract wholly independent of the transfer, upon which their liability must rest, a contention that has never been urged by the plaintiffs at any stage of the proceedings. The course of the proceedings in the suit to which I have already referred unmistakably suggests that the plaintiffs were insisting on their right to realize dasturut and cesses by virtue of their superior title and the defendants were resisting the claim and repudiating the assertion that they had but a subordinate title. The suit, therefore, in my opinion, is in essence a suit for rent and so excepted from the cognizance of a Court of Small Causes by Article 8, Schedule 2, Provincial Small Cause Courts Act.
13. Assuming but not conceding that the suit cannot be put so high as to bring it within Article 8, I do not see how it can be taken out of the purview of Article 13. That article, so much of it as is relevant, is thus worded:
A suit to enforce payment of... cesses or other dues when the cesses or other dues are payable to a person by reason of his interest in immovable property.
14. To my mind whatever may be the legal or juridical relation between the parties the dues and cesses are being claimed in the suit only by reason of the interest in immovable property which the plaintiffs, notwithstanding the sale, claim to have retained in the mauza and which in their view is still continuing in their favour. The words 'by reason of his interest in immovable property' have been interpreted as contemplating payments which a person is entitled to as representing his interest in immovable property and not because he possesses some interest in such property: see Maharaja of Vizianagram v. Kota Veeramma  36 Mad. 18, Jairam v. Doma  11 N.L.R. 100, I agree in this view and hold that Article 13 in any event covers the suit. The preliminary objection, therefore, in my opinion should be overruled.
15. On the merits I do not think I am called upon to go into detail as 'my learned brother is of opinion that no appeal lies and the result of this difference will be to affirm the decree of the trial Court. For myself I am decidedly of opinion that nothing has been established in the case which can legally form the foundation of a decree against the defendants. The fact that between predecessors of the present plaintiffs and the present defendants decrees for dasturat rent were passed for certain years, as the Munsif has found, and the fact that the manager of the defendants' estate, when the estate was under the Court of Wards, admitted liability for the rent for a certain other year, are hardly sufficient to dispose of the grounds upon which the defendants have sought to resist the claim in the present suit. The District Judge has said that the admission shows that the rent is still payable and the mere fact of non-payment does not put an end to the defendants' liability. I fail to see how the question of the defendants' liability can be legally disposed of in this way. The appellants have conceded that so far as the amount and period in suit are concerned they do not object to the decree standing against them, but as the issue decided in the suit goes the length of determining the validity and legality of the demand for all times to come, a reservation should be made to the effect that the decision is not to be taken as binding between the parties in respect of any future claim. As there is no legal basis for this determination, left to myself I should have dismissed the appeal, but should have made the reservation prayed for in their favour, because in my opinion, there is nothing on which a decision of thi3 general issue can possibly rest.