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Kumarish Ch. Mukhopadhya Vs. Ram Taran Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal939
AppellantKumarish Ch. Mukhopadhya
RespondentRam Taran Ghosh and ors.
Excerpt:
- .....complained of in this rule deals with an application for revision of a decision passed by the learned munsif in a suit for rent. an appeal was filed by the petitioner before us in the court of the learned district judge against the said decision of the munsif. the learned judge, being of opinion that no appeal lay, passed an order to the effect that the memorandum of appeal would be treated as a petition of motion. if the learned judge was dealing with the matter in revision it is clear that his judgment cannot be assailed, for he has observed in his judgment that even if the court of first instance had wrongly decided the question of res judicata in favour of the opposite party, that decision could not be challenged in revision, because in revision the learned judge would be.....
Judgment:

Mukerji, J.

1. The judgment of the learned District Judge complained of in this rule deals with an application for revision of a decision passed by the learned Munsif in a suit for rent. An appeal was filed by the petitioner before us in the Court of the learned District Judge against the said decision of the Munsif. The learned Judge, being of opinion that no appeal lay, passed an order to the effect that the memorandum of appeal would be treated as a petition of motion. If the learned Judge was dealing with the matter in revision it is clear that his judgment cannot be assailed, for he has observed in his judgment that even if the Court of first instance had wrongly decided the question of res judicata in favour of the opposite party, that decision could not be challenged in revision, because in revision the learned Judge would be confined to questions of jurisdiction.

2. It has, however, been urged before us that an appeal lay to the learned District Judge. Now, it appears that the plaintiff's case was that there were two jamas, one bearing a rental of 10 annas and the other of Rs. 2-2 annas and the suit out of which this application arises was one for recovery of rent in respect of the jama bearing the rental of 10 annas. The defence set up on behalf of the defendants was that this jama which is alleged to bear the rental of 10 annas has no separate existence bur. that this jama together with the other jama formed one bigger holding of which the total rental payable by the defendants to the plaintiff was Rs. 2-12-0. The decision of the Munsif was that so far as the jama alleged on behalf of the plaintiff was concerned, it had no separate existence and there was no relationship of landlord and tenant between the parties in respect of such a jama and generally speaking the findings of the learned Munsif were in favour of the contention put forward on behalf of the defendants, namely, that the defendants held the bigger jama as was alleged by them and in that view of the matter the plaintiff's suit was dismissed by him.

3. The petitioner's contention before us is that the decision of the learned Munsif as aforesaid amounted to a decision on a question of the amount of rent annually payable by a tenant and that, therefore, the case comes within the exception provided for in Section 153, Bengal Tenancy Act. An unreported decision of this Court has been cited as an authority for the position which the petitioner takes up in this rule. With all respect to the learned Judge who decided that case I am of opinion that that decision, if it purported to lay down any general proposition such as has been contended for on behalf of the petitioner, was not correct and I am unable to follow the same. I am of opinion that in this particular case no question has been decided which will bring the case within the exception referred to in the section and consequently no appeal lay to the learned District Judge. In this view of the matter I am of opinion that the rule should be discharged.

4. As the costs of the opposite parties who have appeared in this rule appear to have been deposited by the petitioner, there will be no further order as to costs in this rule.

Graham, J.

5. I agree.


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