1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Cuming in a suit for arrears of rent.
2. The claim was valued at less than Rs. 100. A second appeal to this Court would accordingly be barred under Section 153 of the Bengal Tenancy Act, unless one or other of the special circumstances mentioned in that section was proved to exist. Mr. Justice Cuming came to the conclusion that there were no such special circumstances and that the appeal was consequently incompetent. In this view he did not consider the appeal on the merits. We are of opinion that this view as to the nature of the decree under appeal cannot be supported.
3. The defendant holds under the plaintiffs a parcel of land and the plum trees thereon. The case for the plaintiffs is that the land was settled first at the rate of Rs. 5 a year and that the trees were settled thereafter at the rate of Rs. 2 a year. The plaintiffs accordingly claimed rent for the years in suit at the rate of Rs. 7 a year for the land and the trees. The defendant contended that there was no separate settlement in respect of the trees and that the rent of Rs. 5 covered both the land and the trees. The trial Court came to the conclusion that the defence had been established and made a decree for rent at the rate of Rs. 5 a year. The plaintiffs appealed. The Subordinate Judge held that the rent of Rs. 5 covered the land only and that an additional rent of Rs. 2 was payable in respect of the trees. He accordingly modified the decree of the primary Court and made a decree for rent at the rate of Rs. 7 for the land and the trees. The defendant has appealed to this Court.
4. It is plain that the decree of the Subordinate Judge did decide a question relating to the amount of rent annually payable by the tenant, if not also a question relating to title or some interest in land as between parties having conflicting claims thereto. But our attention has been invited to the case of Jamadar Singh v. Jagat Kishore  23 C.L.J. 557 as an authority for the contrary view. We are of opinion that the case mentioned is clearly distinguishable. It was there ruled that the bar created by Section 153 cannot be avoided merely by the inclusion of a money claim in a suit for rent where the claim for rent is less than Rs. 108. In the present case, if we look at the conduct of the parties, the dispute really is, whether the rent is payable at the rate of Rs. 7 as alleged by the plaintiffs or Rs. 5 as alleged by the defendants in respect of the land and trees in suit. Consequently the appeal was competent.
5. We have considered the judgment of the Subordinate Judge on the merits and have come to the conclusion that the matter requires examination. His conclusions are based in the main on certain collection papers. There was a question between the parties as to whether these identical collection papers had or had not been produced in their entirety in another suit in the District Court. The first Court was not satisfied that they had been so produced. The appellate Court thought that they had been. We are of opinion that this matter requires further enquiry.
6. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and the case remanded to him in order that the appeal may be reheard on the merits in accordance with law. He will take evidence upon the question whether the collection papers relied upon by the plaintiffs were in fact produced in their entirety in the other suit; and if so, what bearing they had upon the present case. The appellant is entitled to the costs of this appeal. The costs of the appeal before Mr. Justice Cuming will abide the result.