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Ashutosh Dey Vs. Foolchand Keshabdeo and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal530
AppellantAshutosh Dey
RespondentFoolchand Keshabdeo and anr.
Cases ReferredShew Prosad v. Ram Chunder
Excerpt:
- .....roy ('82) 8 cal. 238 and contended that where substantial questions of title have been raised in a suit for rent the court should not entertain the suit, and it should direct the parties to have the question of title litigated in the proper court. now, lodai mollah v. kally dass roy ('82) 8 cal. 238 does not lay down any such principle. all that it says is this: where a person sued for rent sets up the title of a third party and alleges that he holds under and pays rent to him, such third party ought not to be made a party to the suit so as to convert a simple suit for rent into one for determination of title to the property in respect of which the rent is claimed. in that case the plaintiff sued certain persons for rent. those persons set up title in somebody else. the plaintiff did not.....
Judgment:
ORDER

Sen, J.

1. One Ashutosh Dey instituted a suit in the Court of Small Causes at Calcutta against five persons : (1) Foolchand Keshabdeo, (2) Jotindra Mohun Nundy, (3) Jagat Mohun Nundy, (4) Sudhangshu Mohun Nundy and (5) Sm. Badharani Dasi. The plaintiff's case was that he and defendants 2 to 5 were cosharers with respect to premises 8, Ram Kumar Rakhit Lane. He claimed that he had a 29/125th share therein, and the other co-sharers had 96/125th share. He alleged that defendant 1 (Foolchand Keshabdeo) was a tenant of these premises under himself and his cosharers, and he claimed his share of the rent from Keshabdeo. In the alternative he claimed that if Keshabdeo had paid all the rent to defendants 2 to 5 those defendants should pay the plaintiff his share of the rent. The defendant, Keshabdeo, took up the position that he was a tenant under defendants 2 to 5, and that he had nothing to do with the plaintiff. Defendants 2 to 5 claimed that they were the sole owners of the premises, and that the plaintiff had no share therein. No oral evidence was given, but certain documents were adduced in evidence. The learned Judge passed a decree in favour of the plaintiff, holding that the plaintiff had the share claimed by him in the premises and he found that Keshabdeo was a tenant under the plaintiff and his cosharers. Against this decision an application was made to the Full Bench of the Court of Small Causes under Section 38, Presidency Towns Insolvency Act. The Pull Bench upheld the decision of the trial Judge. Thereupon defendants 2, 3 and 4 moved this Court and obtained a rule. The only question for determination is whether the decision of the Court of Small Causes is such as would justify this Court in exercising its revisional powers under the provisions of Section 115, Civil P.C.

2. Mr. Bose on behalf of the petitioners raises the following points : (1) He says that inasmuch as a substantial question of title to immovable property was raised the jurisdiction of the Court of Small Causes was ousted, and the learned Judge had no jurisdiction to pronounce judgment. (2) He contends that the learned Judge acted illegally and with material irregularity in the exercise of his jurisdiction inasmuch as he did not consider certain pieces of documentary evidence, namely an affidavit of assets filed in probate proceedings, an inventory also filed in those proceedings and a consent decree. (3) He contends that the learned Judge acted with material irregularity in giving the plaintiff a decree in the absence of any evidence to show that the plain-tiff was the reversioner of one Sudebi Dasi whom the plaintiff alleged to be the last limited owner of the share claimed by him in these premises. Lastly he contends that the learned Judge has erred in giving the plaintiff a decree without finding that the relationship of landlord and tenant existed between the plaintiff and defendant 1. In my opinion, although a substantial question of title to immovable property was involved in the suit, this question was merely an incidental one, and the Court therefore had jurisdiction to try the suit which was for the recovery of the rent and, in the alternative, for the recovery of money had by the defendants on behalf of the plaintiff.

3. In this connexion I would refer to the decision of a Full Bench of the Bombay High Court in Puttangowda Mallangowda v. Nilkanth Kalo ('13) 37 Bom. 675. The plaintiff brought a suit in the Court of Small Causes to recover a sum of Rs. 12 as the value of certain trees felled by the defendant. The plaintiff's claim to relief proceeded on the basis that the trees belonged to him because the land on which they stood also belonged to him. The question was raised that the Small Cause Court had no jurisdiction to entertain the suit. The Full Bench held that a Court of Small Causes could entertain a suit, the principal purpose of which was to determine a right to immovable property provided the suit in form did not ask for that relief, but for the payment of a sum of money. There are other cases of the Bombay High Court to the same effect. These cases are relied upon by the learned Counsel appearing on behalf of the respondent. Mr. Bose on the other hand relied upon the decision in this Court in Rajendra Mullick v. Nanda Lal Gupta ('04) 31 Cal. 1001. In this case the learned Chief Justice made an observation that if the question of title was the sole question in the case the jurisdiction of the Small Cause Court would be ousted. He held on the f acts of the case before him that the sole question was not one of title and, therefore, the Court of Small Causes had jurisdiction. The facts of that case were these: The plaintiff sued the defendant for rent of certain premises. The defendant stated that he had surrendered his lease to the plaintiff and taken a fresh lease from a third party who had put him in possession. The Court of Small Causes referred the matter to this Court for their decision whether in these circum-stances the Court of Small Causes could try the suit. This Court held that the question of title arose incidentally in the suit and, therefore, the Court of Small Causes had jurisdiction.

4. In the present case also I would point out that the question of title to immovable property is not the sole question involved in the case. One of the questions involved is whether or not the defendant Foolchand Keshabdeo is a tenant under the plaintiff Ashutosh Dey. In my opinion the case relied upon by Mr. Bose does not help him and there is no decision placed before me which would indicate that in the circumstances of the present case the jurisdiction of the Small Cause Court would be ousted. Mr. Bose also relied upon the well-known decision in Lodai Mollah v. Kally Dass Roy ('82) 8 Cal. 238 and contended that where substantial questions of title have been raised in a suit for rent the Court should not entertain the suit, and it should direct the parties to have the question of title litigated in the proper Court. Now, Lodai Mollah v. Kally Dass Roy ('82) 8 Cal. 238 does not lay down any such principle. All that it says is this: where a person sued for rent sets up the title of a third party and alleges that he holds under and pays rent to him, such third party ought not to be made a party to the suit so as to convert a simple suit for rent into one for determination of title to the property in respect of which the rent is claimed. In that case the plaintiff sued certain persons for rent. Those persons set up title in somebody else. The plaintiff did not join those persons as parties, but the Subordinate Judge insisted on their being joined as parties, and thereafter decided the question of title. This Court held that the procedure of the Subordinate Judge was erroneous. The present case is quite different. Here the plaintiff claims to be a cosharer landlord with defendants 2 to 5. He was bound to add them as parties to this suit for rent inasmuch as he alone could not sue for rent. Therefore, there has been no error committed in making defendants 2 to 5 parties to the suit: nor is the fact of their being parties to the suit a circumstance which would oust the jurisdiction of the Court of Small Causes.

5. As regards the point that the learned Judge has not considered certain documents put in evidence, all I need say is that it has not been shown that the learned Judge has not considered them. The documents were there, and I must presume that the learned Judge did consider them. The judgment is that of a Court of Small Causes, and it is not necessary for a Judge of the Court of Small Causes to give the reasons for his decision the points which arose for determination. All that he need do is to set out the points for determination, and his decision thereon. This is what the learned Judge has done. It is true he has given certain reasons for his decision in which he has not mentioned these documents. That does not show that he has ignored these documents. Further, even if he ignored these documents, I am of opinion that such omission would not come within the mischief of Section 115(c). In my opinion Section 115(c) applies to errors committed in connexion with the exercise of jurisdiction or errors committed in respect of procedure. It does not apply to every error of law committed by a Judge. I am aware that there are authorities which have interpreted Section 115(c) in a manner which gives this Court a very extended power of interference in revision. I am inclined, however, to follow the two Privy Council decisions in Ameer Hossein Khan v. Sheo Baksh Singh ('89) 11 Cal. 6 and the case in Balakrishna Udayar v. Vasudeva Aiyar ('17) 4 A.I.R. 1917 P.C. 71. In the last mentioned case referring to Section 115 their Lordships said this:

It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved.

6. I was also referred in this connexion to the case in Shew Prosad v. Ram Chunder ('14) 1 A.I.R. 1914 Cal. 388 at page 328 where Chief Justice Jenkins said:

It appears to me that Section 115 can only be called in aid when the failure of justice, if any, has been due to one or other of the faults of procedure indicated in that section. If there was an error committed (by the Small Cause Court Judge) it was an error of law and not of procedure, and in my opinion Fletcher J. had no power to interfere.

7. As stated before, Mr. Bose also argued that there was no evidence to show that the plaintiff was the reversioner of Sudebi Dasi, the last limited owner. I find, however, that there was such evidence. The proceedings before the Collector of Calcutta were put in evidence and the decision of the Collector was to the effect that the plaintiff was a reversioner of Sudebi Dasi. The relationship between the plaintiff and Sudebi Dasi was, apparently, never challenged in the present suit. The last point of Mr. Bose is also not of substance. The judgment read as a whole does imply finding that the relationship of landlord and tenant exists between the plaintiff and Keshabdeo. It is true that there is no express finding. That, in my opinion, matters little especially in the case of a judgment of a Court of Small Causes. In any case the absence of such an express finding is not a matter which would attract the interference of this Court under Section 115, Civil P.C. In these circumstances I hold that this rule must be discharged with costs.


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