1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in a suit for arrears of rent.
2. The suit was tried in the Court of first instance by a Judicial Officer specially empowered by the Local Government to exercise final jurisdiction under Section 153 of the Bengal Tenancy Act and the amount claimed in the suit did not exceed Rs. 50. The suit was decreed with costs in favour of the plaintiff. Thereupon the defendant preferred an appeal to the District Judge: this was summarily dismissed under Order XLI, Rule 11, Civil Procedure Code, on the ground that no appeal lay on the authority of the decision in Baidya Nath v. Dhon Krishna 5 C.W.N. 515. A second appeal was thereupon preferred to this Court. In support of the appeal it was argued before Mr. Justice Newbould that the appeal to the District Judge was competent, inasmuch as the decree of the Primary Court had decided a question of the amount annually payable by the tenant. This contention was overruled and the decree of the District Judge was affirmed, Consequently, the point involved in the present appeal is, whether the appeal to the District Judge was or was not competent under Section 153 of the Bengal Tenancy Act, The determination of the question depends on the. nature and contents of the decree made by the Court of first instance.
3. The suit was brought to recover arrears of rent at the rate of Rs. 8-3 annas 4 pies a year with cesses and damages for a period of four years. The case for the plaintiff was that in Mouza Shapkhali he had inherited 6-annas 8-gundas share in maliki right from his mother Saroda Sundari Dassi and 9-annas 12 gundas share in ijara right from his father Ram-narain Sircar. On this allegation the plaintiff sought to collect the sixteen annas rent from the tenant defendants, who were in occupation of 3 bighas 16 cottas of land at a rental of Rs. 8 3-4 pies. The first defendant, who alone entered appearance, admitted that the plaintiff had maliki right to the extent of a 6-annas 8-gundas share inherited from his mother, but denied the existence of the alleged ijara right during the period in suit. Consequently, the point arose for decision, whether there' was an ijara of a 9-annas 12-gundas share in favour of Ram Narain Sarkar and whether the plaintiff had inherited that share; in other words, was the defendant liable to pay the sixteen-annas share or only a 6-annas 8-gundas share of the rent to the plaintiff. The Trial Court same to the conclusion that not only the maliki right but also the ijara right was in existence and that the plaintiff was consequently entitled to realise from the defendant the entire sixteen-annas rent claimed. On these facts, the question arises whether the decree of the Trial Court decided a question of the 'amount annually payable by the tenant.' If the expression 'amount annually payable by the tenant' signifies the amount annually payable by the tenant in respect of the tenancy, there was no controversy between the parties and no decision on a disputed question, because they were agreed that the rent of the holding was Rs. 8-3 annas 4 gundas a year. On the other hand, if the expression 'amount annually payable by the tenant' signifies the amount annually payable by the tenant to the landlord who had instituted the suit for recovery of rent, as stated in an earlier part of the sub-section, there was a substantial point in controversy, namely, whether the amount payable by the defendant to the plaintiff was to be calculated at the rate of Rs. 8 3-4 a year or at the rate of two-fifths of that sum.
4. The determination of this question at one time led to a divergence of judicial opinion in this Court, as is clear from the decisions in Prasanna Kumar v. Srinath Dass 15 C. 231 : 7 Ind. Dec. (N.S.) 738 and Aubhoy Churn Maji v. Shashi Bhusan Bose 16 C. 155 : 8 Ind. Dec. (N.S.) 104. In the first case, Norris and Beverley, JJ., held that when the question was whether the plaintiff was entitled to the whole sixteen annas of the rent or only to a ten annas share of it, no appeal lay, because there was no, question of the amount of rent annually payable by a tenant, these words in the section meaning the total amount of rent annually payable in respect of a holding and not the amount of rent which may be payable to any particular co-sharer in the property. In the second case, where the tenant was sued for a rental of Rs. 15 but the defendant contended that this rental bad been divided and that the plaintiff was entitled only to jibe rent of Rs. 7-8 annas, which was half of the total amount of rent payable by the tenant, Mitter and Macpherson, JJ., held that an appeal did lie as the decree of the lower Court had decided that the rent was Rs. 15 and not Rs. 7-8 annas, which was in essence a decision on the question of the amount of rent annually payable by the tenant, These, decisions were obviously in direct conflict with each other and led to a referense to a. Full Bench in Narain Mahton v. Manoji Pattuk 17 C. 489 : 8 Ind. Dec. (N.S.) 865 (F.B.). In that case the plaintiff contended that he was entitled to an eight-annas share of the rent of the disputed holding. The defendant contended that the, plaintiff was entitled to eight-pies-share of the rent which WS the extent of his share in the superior interest. It was ruled that an appeal lay against the decree which had decided whether the. plaintiff was entitled, to eight-annas share or eight-pies share of the rent, Mr. Justice Pigot who delivered the judgment of the Full Bench stated that the Full Bench agreed with the decision of Mitter and Macpherson, JJ., in the case of Aubhoy Churn Maji v. Shaoshi Bhusan Bose 16 C. 155 : 8 Ind. Dec. (N.S.) 104. Although in the judgment of the Full Bench reference is not expressly made to the decision of Norris and Beverley, JJ., in Prasanna Kumar v. Srinath Das 15 C. 231 : 7 Ind. Dec. (N.S.) 738, which we find was mentioned in the Order of Reference to the Full Bench, there can be no doubt that the decision in that case was overruled by the Full Bench.
5. In this view it is clear that in the present case, the decree of the Primary Court which had decided the question, whether the plaintiff was entitled to the whole rent as claimed by him or only to a two-fifths share as asserted by the defendant, was a decision of the question of the amount of rent annually payable by the tenant within the meaning of Section 153 of the Bengal Tenancy Act, and consequently the appeal to the District Judge was competent. This view is in accord with the decisions in Poresh Moni Dassya v. Nobo Kishore. Lahiri 8 C.W.N. 193 : 30 C. 773 and Bashiram Nath v. Dina Nath Dey (Srinath De) 51 Ind. Cas. 397 : 23 C.W.N. lxxvi (76) (Notes). The decision of Beachcroft, J., in the case last mentioned was, we are informed, ultimately approved by Chitty and Walmsley, JJ., by the dismissal of an appeal preferred under the Letters Patent. It may be difficult to reconcile this view with the decision, of Geidt, J., in Fakeer Mondul v. Arshad Molla 10 C.W.N. cclxxx (280) (Notes), which it should not be overlooked was pronounced before the decision in Poresh Moni. Dassya v. Nobo Kishore Lahiri 8 C.W.N. 193 : 30 C. 773. On the other hand, the cases of Baidya. Nath v. Dhan Krishna 5 C.W.N. 515 and Ram Mohan v. Badan Barai 8 C.W.N. 436 are distinguishable, on the ground that in each of them the question in controversy was whether the relationship of landlord and tenant existed between the parties. In that class of cases, it has been uniformly held [Shilabati Debi v. Roderigues 35 C. 517 : 12 C.W.N. 448 ] that the question whether the relationship of landlord and tenant does or does not subsist between the parties is not a question relating to title to land or to some interest in land as between parties having conflicting claims thereto within the meaning of Section 153 of the Bengal Tenancy Act; nor can the decision of such a question be treated as a decision of the question of the amount of rent annually payable by the tenant, because no question of the amount annually payable by a tenant can. obviously arise for consideration, till it has been ascertained that the relationship of landlord and tenant existed between that parties. It is only in the event of the establishment of such a relationship that a question may arise as to the amount of rent annually payable by the tenant to the landlord.
6. We are of opinion that this appeal must be allowed, the judgment of Mr. Justice Newbould set aside and the case remanded to the District Judge to be heard on the merits. The appellant it entitled to his costs both here and before Mr. Justice Newbould.