1. This is a reference under Rule 7 of Order XLVI of the Code of 1908 by the District Judge of Mozafferpore and raises questions of considerable nicety and importance. It appears that on the 30fch January 1911, Lalji Pandey and others, as plaintiffs, instituted a suit in the Court of the Small Cause Court Judge of Mozafferpore against the defendants, Burhamdeo Pandey and others, for recovery of what was described as damages for use and occupation of certain land. The substance of the case for the plaintiffs was that they were the superior landlords of the disputed land; that the defendants were in occupation and were bound to cultivate the lands; that they had omitted wilfully to raise any crops, and that consequently during the years 1315 to 1318, the plaintiffs were deprived of their share of the crops. The plaintiffs, therefore, sought to recover Rs. 29-10-3 as the money value of what would have been their share of the produce which might have been grown in the land. The defendants entered appearance and on their objection on the 22nd March 1911, the Small Cause Court Judge held that the suit was not triable as a Small Cause Court suit: he, therefore, returned the plaint to the plaintiffs for presentation to the proper Court. The plaintiffs thereupon applied to the District Judge for revision of this order on the ground that the nature of the suit had been misunderstood by the Small Cause Court Judge and that it was, as a matter of law, cognizable by that Court. The learned Judge has made a reference to this Court, and has expressed an opinion that upon the decision in Kunjo Behari Singh v. Madhab Chundra Ghose 23 C. 884 and Kali Krishna Tagore v. Izzatunnissa Khatun 24 C. 557 the view taken by the Small Cause Court Judge would not be supported.
2. At the hearing of the reference the authorities on the subject have been clearly analysed and placed before us with great care by the learned Vakil for the plaintiff, while the case for the defendants (who have not entered appearance) has been presented by Moulvi Muhammad Mustafa Khan, who at the request of the Court undertook to argue the case as amicus curiae, and we are indebted to him for the very full and able argument that he has addressed to us.
3. The question for decision is, whether the suit is excluded from the cognizance of the Small Cause Court by reason of Article 8 of the Second Schedule of the Provincial Small Cause Courts Act of 1887. That Article provides that a Small Cause Court shall not take cognizance of a suit for recovery of rent other than house rent. On behalf of the plaintiff it has been contended that the suit is for the recovery of damages and is consequently cognisable in a Court of Small Causes; on behalf of the defendants, the contrary view has been presented that if the plaintiffs are entitled to recover any sum, that sum is in the nature of rent, and a claim in respect thereof must be enforced in the ordinary Civil Court.
4. In a case of this description the essential point to be ascertained is the status of the defendants. If the defendants are servants or labourers employed by the plaintiffs, the suit must be treated as one for damages. On the other hand, if the defendants are tenants; it is conceivable that the claim may be one for rent. This fundamental distinction was pointed out by this Court in Sreenath Dutt v. Dwary Dhallie 2 W.R.S.C.C. Ref. 2. (Sutherland References from the Mofassil Small Cause Courts, p. 113.) In, that case, it was ruled that where the cultivator is a mere servant of the landlord, a suit for damages will lie against him in a Small Cause Court; but if the cultivator is a tenant to whom the landlord has sub-let the land, a suit for non-fulfilment of the contract by the tenant will lie under the Rent Act. This principle appears to have been recognised in the case of Kade Mandal v. Ahadali Molla 6 Ind. Cas. 594 : 14 C.W.N. 629 and if the distinction is borne in mind it is not difficult to reconcile the cases mentioned in Shoma Metha v. Rajani Biswas 1 C.W.N. 55. In this case it was pointed out that a suit for produce rent or its money value is a suit for rent under the Bengal Tenancy Act and not a suit for damages for breach of contract and is, therefore, not cognizable by a Small Cause Court. The learned Judges observed that this view was in accord with that taken by a Full Bench of the Allahabad High Court in the case of Tajuddin Khan v. Ram Parshad Bhagat 1 A. 217 and that the previous decisions of this Court in the cases of Lachman Prosad v. Halas Mahtoon 11 W.R. 151 : 2 B.L.R. 27 App.; Mullick Amanutali v. Ukloo Pasee 25 W.R. 140; Mohunt Jumna Doss v. Gowsee Meah 21 W.R. 124 did not militate against this view. We, therefore, start with the position that the status of the defendants has first to be determined, because if they are not tenants, the claim against them cannot possibly be for rent, although it does not follow that if they are tenants, the claim must necessarily be for rent.
5. In the case before us the plaint, taken as a whole, indicates, we think, that the plaintiffs have treated the defendants as tenants. No doubt, they stated that they called upon the defendants to quit the land when they found that they omitted to cultivate it in due course and that the defendants neither quitted the land nor brought it under cultivation. But it is to be observed that the claim has been laid in respect of the crops for four years and it has further been restricted to the one-half share of the whole produce which is explicitly described as the malik's share. These circumstances indicate that the plaintiffs have treated the defendants as tenants, If their case was that the tenancy had been terminated, the suit ought to have been brought for recovery of the value of the entire crop on the footing that the defendants were trespassers in occupation, and in that event the claim for any period in excess of three years would at once have been met by the plea of limitation. If, then, the defendants are tenants, the question arises whether the suit is one for rent.
6. It has been suggested by the learned Vakil for the plaintiffs that the suit is one for damages for use and occupation. In our opinion, that view cannot be supported. A suit for damages for use and occupation can be maintained against a. tenant who has occupied the premises by the permission or sufferance of the landlord, though the terms of the tenancy have not been settled with precision. Rochester v. Pierce (1808) 1 Campbell 466; Konai Lull v. Nitai Chand 7 Ind. Cas. 492 : 12 C.L.J. 612. In these circumstances, the law implies a contract or promise by the tenant to pay to the landlord a reasonable sum for such use and occupation. Hellier v. Sillcox 19 L.J.Q.B. 295 : 14 Jur. 573 and Churchward v. Ford 2 H. and N. 445 : 115 R.R. 631 : 26 L.J. Ex. 354 : 5 W.R. 831. In the case before us, if the allegations of the plaintiffs are accepted the terms of the tenancy have been settled with perfect accuracy. Their allegations are that the tenants agreed to cultivate the land and to pay them a half share of the produce that might be raised by due diligence. Consequently, although in the event of the failure of the tenant to deliver one-half share of the produce, the Court may be called upon to investigate the quantity and the money value of the crops, there is no uncertainty as to the terms of the contract between the parties, It follows, therefore, that the suit cannot be treated as one for damages for use and occupation. This clears the way for determination of the question, whether the suit is one for rent. Now, the definition of 'rent' 8s given in Section 3 Clause (5) of the Bengal Tenancy Act is, whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use and occupation of the land held by the tenant. It is clear, therefore, that the share of the crops which the defendants are alleged to have undertaken to deliver to the plaintiff was rent. They have failed to deliver the crops, and the plaintiffs seek to recover the money value thereof. Is the nature of the relief which the plaintiffs seek altered by the failure of the defendants to perform their part of the contract? In our opinion, the answer ought to be in the negative. The learned Vakil for the plaintiffs did not dispute that if the defendants had grown the crops in due course and had appropriated them for their own purposes, a suit by the landlords to recover the value of their share of the crops could be treated only as a suit for rent. But he urges that the matter is different when the defendants fail to raise the crops. We are unable to accept the suggested distinction as well founded on principle. The position of the landlord is precisely the same whether the failure of the tenants to deliver the crops is due to the fact that they have misappropriated the crops themselves or have failed by reason of want of diligence to raise them at all. In either event, the landlords are entitled to be indemnified and the money which they recover from the tenants represents the compensation paid by the tenants to them on account of the use and occupation of the land held; that is, it is rent. It is not necessary for us to hold that whenever the tenant fails to raise the crops contrary to the terms of his contract, the sole remedy of the landlord is to recover the value of the crops. The landlord may, sometimes, have an additional remedy. For instance, if by reason of the failure of the tenant to cultivate the land, the land itself is deteriorated in value, or if it relapses into jungle, the landlord may well be entitled to claim damages and such damage may, in the contingency mentioned, very well represent the cost of reclamation. The answer to the question, therefore, whether the suit is one for damages or for rent must depend upon the nature of the claim put forward. If what the plaintiffs claim, is the money value of the crops to be delivered by the tenants, to the landlords on account of use and occupation of the land held by them, its true nature, in our opinion, is rent. This view is in accord with that taken by this Court in the case of Panchu Chakar v. Nogendra Nath Pal 8 Ind. Cas. 96 : 12 C.L.J. 480 in which it was ruled that the money value of services not performed by the tenant is in the nature of rent and a claim in respect thereof can be enforced only in the ordinary Civil Courts. The learned Vakil for the plaintiffs has placed much reliance upon the case of Vira Pillai v. Rangasami Pillai 22 M. 149. That case, however, is of no assistance to him. There the defendant had ceased to be a tenant and the suit brought against him was for damages for use and occupation of the land held by him as a trespasser. A suit of that description is obviously cognizable in a Court of Small Causes and a similar principle appears to have been accepted in Bhoobun Mohun v. Chander Nath 17 W.R. 69. In the case before us, as we have already explained, the tenancy has not yet been terminated. The defendants are still tenants in occupation and consequently the sum claimed by the plaintiffs, if recoverable at all, is recoverable only as rent and not as damages for use and occupation.
7. The answer, therefore, which we give to the reference is that the view taken by the Small Cause Court Judge is correct and the plaint has been rightly returned for presentation to the proper Court.