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Gangadhar Karmakar and ors. Vs. Shekhar Basini Dasya and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in31Ind.Cas.812
AppellantGangadhar Karmakar and ors.
RespondentShekhar Basini Dasya and anr.
Cases ReferredBhagabati Bewa v. Nanda Kumar Chuckerbutty
Excerpt:
bengal tenancy act (viii of 1885), section 153 - landlord and tenant--suit for rent below rs. 50--conflicting claim set up--suit dismissed as no relation of landlord and tenant found--appeal, if maintainable--no appeal from first court's decision maintainable--second appeal, if maintainable--revision--jurisdiction--civil procedure code (act v of 1908), section 115. - .....in the name of his daughter and leased it out to his son-in-law--'nominally for his daughter. the learned munsif declined to have anything to do with these conflicting claims and decided that, because the plaintiff had not attempted to collect or collected any rents from her father, the relationship of landlord and tenant did not exist. the daughter went in appeal before the learned district judge, and he held, on a preliminary objection, that the question of the conflicting title to or interest in the land had been decided by the munsif and that it was competent to him to deal with the appeal and accordingly, he dealt with it, and found clearly on the facts that the lady was speaking the truth and was supported up to the hilt by the necessary documents and that the story told by the.....
Judgment:

1. This second appeal arises out of a rent suit brought under rather curious circumstances. The plaintiff, a lady, alleging that she purchased the land from the original proprietor, sued her father as a tenant for rent for the last two years of her vendor's incumbency and for the first two years of her possession. The father set up the title in himself and said that he purchased the holding benami in the name of his daughter and leased it out to his son-in-law--'nominally for his daughter. The learned Munsif declined to have anything to do with these conflicting claims and decided that, because the plaintiff had not attempted to collect or collected any rents from her father, the relationship of landlord and tenant did not exist. The daughter went in appeal before the learned District Judge, and he held, on a preliminary objection, that the question of the conflicting title to or interest in the land had been decided by the Munsif and that it was competent to him to deal with the appeal and accordingly, he dealt with it, and found clearly on the facts that the lady was speaking the truth and was supported up to the hilt by the necessary documents and that the story told by the father was a mere pretence to get rid of his liability.

2. In appeal before us, it is argued that the decision of the Munsif being simply that the relationship of landlord and tenant did not exist between the parties inasmuch as no rents had ever been collected, was a decision from which there was no appeal, the amount of rent claimed being under Rs. 50. In reply, the learned Vakil for the respondent strenuously argued that this case falls under those exceptional instances which are referred to in two cases reported in 8 Calcutta Weekly Notes, one case being Sita Nath Pal v. Kartick Gharmi 8 C.W.N. 434, and the other Bam Kanai Bass v. Fakir Chand Bass 8 C.W.N. 438. We are, however, of opinion that the ruling in Shilabati Debi v. Roderigues 35 C. 547 : 12 C.W.N. 448. which is perfectly general in its terms, applies equally to this case as to every other case in which there has been no actual decision of the conflicting claims or interest in the land.

3. The learned Vakil took a second point that the suit was for rent immediately after the lady's purchase and that the decision that no rent was collected, was no decision at all and the Munsif had, therefore, failed to exercise a jurisdiction vested in him by law and that as the plaintiff had, with the appeal to the District Judge, filed an application under the proviso to Section 153 of the Bengal Tenancy Act for revision, the lower Appellate Court was perfectly competent to pass the decision he did. Here, again, we must rule against the respondent on the simple ground that the lower Appellate Court did not act under the proviso, but distinctly found that an appeal did lie and decided the appeal on the merits.

4. But there is a third ground upon which we are clearly of opinion that the respondent must succeed. It is laid down in the case of Bhagabati Bewa v. Nanda Kumar Chuckerbutty 12 C.W.N. 835, that if no appeal lies from a Munsif to a Subordinate Judge, no appeal lies from the Subordinate Judge to this Court and 'that dictum is expressed in the most general terms and obviously based upon common sense, for, if the first appeal is a nullity, ex hypothesi there cannot be a second appeal. The learned Vakil for the appellant asks us to deal with the matter under Section 115 of the Code of Civil Procedure, as, no doubt, we are fully empowered to do, even though no application has up to date been made for that purpose. But when we are asked to exercise this extraordinary jurisdiction in revision suo moto it becomes necessary to consider the merits of the case, and on reading the learned Judge's judgment, it is perfectly plain that no good purpose whatever can be served by olio wing this unfortunate litigation between a father and daughter to continue. There is the clearest finding, as we have already said, that the lady's story is established both by oral and documentary evidence beyond any doubt, and it is not, in the least, likely that this Court would interfere in revision in the face of such findings of fact by a very experienced District Judge.

5. The result is that the appeal is dismissed. Under the circumstances, the parties will bear their own costs throughout, and the decree of the lower Court will be modified to that extent.


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