1. This was a suit for recovery of bhag dhan and paddy, or the price thereof (Rs. 99), from the defendant on the basis of a kabuliat for the year 1313.
2. The defence was that the plaintiff had no right to the lands; that he was the benamidar for one Kumeda Dasi, his daughter, who was the real owner; that the bhag dhan and paddy for 1313 had been delivered to Kumeda Dasi, and that the produce and the price, as claimed in the plaint were excessive.
3. The issues settled in the first Court were: first, whether the plaintiff is a mere benamidar for Kumeda Dasi; secondly, if so, whether the plaintiff can claim rent, and, thirdly, whether the amount of the produce and the prices claimed are excessive.
4. The Munsif found that all the documents relating to the property were found to be in the possession of the plaintiff's daughter who had been examined and had deposed, as he says, in a most straightforward manner, to the effect that she had purchased the properties in her father's name. The plaintiff alleged that the documents had been forcibly taken away from him by his sons and he lodged a complaint to that effect before the Sub-Divisional Officer. But he subsequently stated that he did not want to proceed with the case. The Munsif held that prima facie the plaintiff appeared to have a title to the lands and to the rent. But, going into the question of benami, he added that the question was, who paid the consideration for the kobalas? And he subsequently came to the conclusion in respect of the findings on this and the other points referred to in his judgment, that the plaintiff had not made out that he was the real owner of the lands and that it had been established, on the other hand, that Kumeda Dasi was the real owner; and he ordered that the suit should be dismissed. On these findings he did not think it necessary to consider the third issue.
5. The plaintiff appealed to the District Judge of Midnapur, who reversed the decision of the Munsif in a judgment which does not appear to us to be satisfactory.
6. It was objected on behalf of the plaintiff-respondent that no appeal lay in this case by reason of the provisions of Section 153 of the Bengal Tenancy Act, which lays down that an appeal shall not lie in any suit instituted by a landlord for recovery of rent, where the amount claimed does not exceed Rs. 100. In reply, however, it was contended on behalf of the defendant-appellant that an appeal did lie, and upon the following grounds. The learned District Judge found that the plaintiff was not a benamidar for his daughter, and he has allowed the appeal with costs in both Courts. He has decreed the rent claimed in full, with interest at 12 1/2 percent, until realization; and he has further proceeded, under the provisions of the recently enacted Section 186 A (1) of the Bengal Tenancy Act, to award damages against the defendant, which he has fixed at Rs. 25. The contention of the defendant-appellant has been that, having regard to this award under Section 183 A (1), an appeal lies on the following grounds, namely, that although the suit was a suit for rent the amount of which was Rs. 99 only, it was not open to the District Judge to make the award under Section 186 A (1), unless a claim had been made by the plaintiff for damages under that section; that on general principles it was not open to the Court to award by its decree a greater sum than had been claimed in the plaint which has been done in this case; that, applying this principle, it would have been necessary, before any sum could be awarded, by way of damages, that the plaint should be amended that we must take it for the purposes of the appeal that that was done which should have been done; and that the plaint was, in effect, a plaint for Rs. 99 as rent, and also for damages under Section 186 A (1) of the Bengal Tenancy Act,--in which case it is contended that the amount claimed would be Rs. 100 and the appeal would not be barred.
7. There is also another ground upon which it might be argued that an appeal lay, and it is this, that although the plaint asks to recover the sum of Rs. 99 and the Court-fee has been paid on that sum, the prayer of the plaint also asks for further and other relief and for costs. It has been held by this Court in the case reported in Behari Churn Sen v. Bhut Nath Pramanik 3 C.W.N. 214 that the term 'amount' in Section 153 of the Bengal Tenancy Act does not mean merely the amount of rent claimed, but the whole amount claimed in the suit including the rent, interest, etc. There is, however, this distinction (whatever it may be worth) between the present case and that case, namely, that in the reported case interest was actually asked for, and in the present case, what was asked for was further and other relief; and in virtue of the provisions of Section 67 at the Bengal Tenancy Act the plaintiff would, on proof of his title and of the facts alleged, be entitled to interest at 12 1/2 per cent., and interest has, in fact, been given. It has been contended that such interest cannot be said to be any part of the amount claimed within the meaning of Section 153, but that it is the amount which is statutorily given in addition to the amount claimed, and that it must be excluded in determining whether the case falls within Section 153. But that argument would appear to question the soundness of the decision in Behari Churn Sen v. Bhut Nath Pramanik 3 C.W.N. 214 for if that principle is applicable it would be applicable in both cases, that is, in the case where interest was specifically claimed and in the case where, as in the present instance, further and other relief is claimed. And the law, by virtue of Section 67 of the Bengal Tenancy Act, grants further and other relief in the shape of interest.
8. On the whole it appears to me to be doubtful whether an appeal lies, the matter, however, is not of importance in the present case, for, if an appeal does not he it appears to me to be clear that this is a case in which we should interfere under the provisions of Section 115 of the Code of Civil Procedure, and this Court can interfere of its own motion and without an application made to it by a party to the suit. For it is clear upon the face of the judgment that there have been such illegality and irregularity in the trial of this case as makes it a proper one for our interference under that section. The only question which could arise, was as to whether or not we should deal with this matter at once under Section 115, Civil Procedure Code or give the Pleader for the plaintiff-respondent, a further opportunity to argue the case. He does not ask for such further opportunity, and is willing that the matter should be now dealt with; and I, therefore, propose to deal with it, under Section 115, Civil Procedure Code.
9. The learned District Judge has found, in the first place, and as a matter of law, that the defendant was estopped from denying the plaintiff's title. There was no issue raised in the lower Court with regard to the question of estoppel; and in the lower Appellate Court there is no finding of fact of any kind which supports the finding of law that the defendant was estopped. The learned District Judge has not found whether or not the defendant was inducted into the land by the plaintiff, or, if he was inducted, into what land he was inducted, or whether there was an attornment to the plaintiff. Nor has he considered the special circumstances of the case which should be considered, namely, that it is alleged that the plaintiff is the benamidar for Kumeda Dasi, and the bearing of that allegation upon the question of estoppel. I may refer in this connection to the decisions in the cases reported in Kuppu Konan v. Thirugnana Samandam Pillai 31 M. 461; Kothaperumal Rajali v. Secretary of State for India 30 M. 245 : 17 M.L.J. 174; Rahimannessa Bibi v. Mahadab Das 12 C.L.J. 428 : 7 Ind. Cas. 846 and the earlier cases referred to in these decisions. In this connection also we have been referred to the kabuliat, and asked to say that the question of induction into possession was not disputed and that it was proved by the terms of the kabuliat. In the first place, that is a matter of construction of the kabuliat upon which the defendant should have the decision of the lower Appellate Court; and, in the next place, on the face of the kabuliat itself it appears that, the recital upon which reliance is placed refers to 13 cottahs of land only. So that if it had (which I do not decide) the effect of proving the induction into possession such induction would refer to a part only of the property. In this connection also we would draw the attention of the learned District Judge to the 8th paragraph of the defendant's written statement in which he alleges that he had been in possession of the disputed land in tenants' right from long before the kabuliat alleged by the plaintiff. The District Judge, therefore, on this part of the case must, in the first instance, decide whether the question of estoppel arises and should be dealt with in this case; and if he holds that it does arise, he must give both parties an opportunity of adducing evidence touching this question of estoppel where such evidence has been taken, he must decide as to whether there is any estoppel in this case and find the necessary facts upon which that judgment of law proceeds. Up to the present moment, as I have said, no issue has been raised on this point and the attention of the parties has not been drawn to it.
10. The next question upon which there has been material irregularity is as regards the findings of fact: for the learned District Judge has proceeded alternatively to hold that if there was no estoppel, the plaintiff's case succeeds on the merits. In coming to that conclusion he has, while admitting that there is a circumstance which militates against the plaintiff's claim, namely, the production of the title-deeds by the daughter with whom, it is alleged, the real proprietary interest lies yet proceeded to observe as follows: 'But plaintiff had previously complained to the Criminal Court that these documents had been stolen from him by his son and daughter in collusion with the latter's paramour. I do not see why this complaint should not be believed, although he did not proceed with it.' Now, in the first place, the learned District Judge appears to have been under a serious misapprehension as to the actual facts, because he seems to have thought that the complaint was a complaint as regards the alleged theft of the kabuliat in suit. But, as a matter of fact, this has not been contended before us. The complaint which was laid before the Sub-Divisional Officer made no reference at all to the kabuliat in suit. The learned District Judge was, therefore, under a misapprehension as to this point.
11. Nextly, I have to point out this, that while the District Judge is admittedly right in holding that the possession of the title-deeds by the daughter is a point which tells against the plaintiff, it then lay upon the plaintiff to rebut the inference which arose from such possession. If he sought, as he apparently did, to rebut that inference by proving that the documents had been stolen, it lay upon him to establish that fact; and it is not sufficient to say, as the learned District Judge has done, I do not see why this complaint should not be believed, although he did not proceed with it.' The fact that: the plaintiff made a complaint in the Criminal Court is not evidence in these proceedings that the title-deeds were stolen. At most it would be corroborative evidence of the alleged theft, if it were proved in these; proceedings by evidence given that there had been a theft. Nextly, as I have pointed out as regards corroboration, there is the misapprehension to which I have referred, namely, that the complaint itself does not refer to this particular kabuliat.
12. Then the next irregularity is as regards' the admission of the deposition alleged to have been given by the defendant. The District Judge say's: 'Another circumstance in favour of the plaintiff is that in the previous rent suit, brought by the plaintiff the defendant admitted that the plaintiff was his landlord though at that time he had executed no qabuliat.' In passing I may observe here that, apart from anything else; which I have to say on this point, it: should have been considered in this connection' whether if there was any admission at all what were the circumstances under which it was made. It may be, for all that I know, that if there was any such admission, he was not then, aware of the circumstances which he now alleges as regards benami. But, however this may be, if the alleged admission was based, as it appears to be based simply upon the previous deposition, that de position appears not to have been properly, before the Court. The District Judge says--'His previous deposition was produced in the Court below but not admitted. It was to have been put in after the witness had been questioned on it. But as he did not appear, it should have been admitted, and I have admitted it now.' From this it appears that the deposition was not put in evidence; and the learned Judge was wrong in supposing that it should have been admitted simply because the witness did not appear, if, by that, he means that it should have been admitted without proof. And he appears to have admitted it without any proof whatever that it was the deposition of the defendant. There appears, therefore, to be irregularity, in that the learned District Judge has come to the conclusion that there was the admission referred to in his judgment without any legal evidence of that fact.
13. Then on the question of benami, I may point out that the District Judge nowhere deals with the points which have been dealt with in the Munsif's judgment which he reverses, and which are important questions upon the issue of benami, namely, as to the person by whom the purchase-money was found and also the question of possession as regards the properties.
14. Then, the District Judge has committed an irregularity, in that he has altogether omitted to dispose of the third issue, the Munsif was right in the course he took. Having regard to his findings on the first two issues, a decision of the third issue was not necessary. But it might have become necessary, having regard to the findings of the District Judge. The third issue, therefore, must be considered and determined if the other findings of the Judge render this necessary.
15. Then, I point out further that the District Judge, as I have stated, has allowed damages under Section 186 A (1) of the Bengal Tenancy Act. But he has given no ground whatever for the award in terms of that section. That section says that damages are to be awarded where the tenant renounces his character as tenant of the landlord by setting up without reasonable or probable cause title in a third person or himself. Before awarding such damages the Court should find, as a fact, as to whether there was reasonable or probable cause and state its ground for coming to that conclusion and should also consider, in coming to that conclusion, that though it is found that the defence was without reasonable cause, it was a defence which the Munsif accepted.
16. On these grounds, then, I set aside the judgment and decree of the District Judge and remand the case to him for a fresh decision, having regard to the remarks made in this judgment. If the learned District Judge considers that the question of estoppel arises, he will permit both parties to give such evidence as they desire upon the facts touching this, issue.
17. The costs of this appeal will abide the result of the decision on remand.
18. As I have dealt with this matter under Section 115, Civil Procedure Code, the appeal will be dismissed.
19. I agree.