M.C. Ghose, J.
1. These are two petitions under Section 115 by the transferees in proceedings under Section 26-J, Ben. Ten. Act. The two sets of petitioners each purchased certain lands from the previous holders thereof on the footing that the lands were held under mokarari mourasi rights at a rate of rent fixed for ever and on that basis the transfer fee under Section 12 was sent to the landlord. The landlord thereupon applied to the Court under Section 26-J for landlord's fee at 20 per cent, on the basis that in the transfer deeds the lands had been wrongly described as held at a rent fixed for ever while really they were ordinary raiyati holdings. After the application was made the transferees instituted a suit in the Court for a declaration that the lands which they had purchased were really lands at a fixed rate of rent and not merely raiyati holdings. The landlord defended the suit and it was fought up to the High Court and decided against the petitioners. The application which was kept pending at the prayer of the petitioners during all this time was taken up after the judgment of the High Court and the learned Munsif by his order dated 28th July 1937 held that the landlord was entitled to recover land lord's fee at 20 per cent, and on the ground that the landlord's fee had been withheld for four (4) years by the suits, which the petitioners had made, the Court allowed compensation equal to the amount of landlord's fees.
2. Against that order it is urged in the first place that the learned Munsif had no jurisdiction to try the matter. Reference is made to Section 144(3) which lays down that when a Court is authorized to make an order on the application of a landlord the application shall be made to the Court which has jurisdiction to entertain a suit for the possession of the tenure or holding in connexion with which the application is brought. It is urged that the market value of the lands of the holdings would take the case out of the jurisdiction of the Munsif, and therefore the learned Munsif had no jurisdiction to hear the applications though the applications are in respect of sums of money which are within the jurisdiction of the Munsif. This argument appears to be untenable having regard to the observations made in Fazlur Rahim Abu Ahmed v. Dwarka Nath (1903) 30 Cal. 453. The whole of Section 144 seems to refer to the territorial jurisdiction of the Courts; as to the pecuniary jurisdiction of the Court this Section must be read together with the relevant Section of the Civil Procedure Code. Under that Code a suit is to be instituted in the Court of the lowest grade competent to try it. Here the matter in dispute was as to the claim of a certain sum of money. The learned Munsif has territorial jurisdiction under Section 144, Ben. Ten. Act, to try the matter. As for his pecuniary jurisdiction the sums claimed were within his jurisdiction.
3. The next point urged is that under Section 26-J (2) the landlord ought to have filed a suit and that an application was not the proper remedy. The learned advocate argues it on the construction of the sub-section which says that the landlord shall be entitled to recover the balance of the landlord's transfer fee, etc. It is urged that the sub-section does not allow the party to make an application as is done in certain other Sections, such as 26-F, but leaves the remedy to be taken by the landlord and the only remedy of the landlord is therefore by the institution of a suit. If there was nothing else in the Act on this matter, this argument would be correct and an application would not be the proper remedy under Section 26.J (2), but a suit would have to be instituted. Under Section 188 however, which relates to action to be taken collectively by cosharer landlords, it is stated that the landlord may file an application under Section 26-J. Having regard to this remark in Section 188 it was held in Aghore Chandra v. Rajnandini Debi : AIR1933Cal283 that an application was a; proper remedy under Section 26.J (2), Ben. Ten. Act. In these circumstances it cannot be held that the learned Munsif acted wrongly in entertaining the application. Further, it is to be noted that the petitioners did not at the earliest opportunity object in the Court of the Munsif that the suit was the proper remedy and an application did not lie; on the contrary, they had the application stayed by an injunction while they instituted a separate suit for a declaration that the lands were held at a fixed rate of rent.
4. Lastly, it was urged that the learned Munsif exercised his discretion wrongly in allowing the landlord compensation equal to the amount of the transfer fee, namely Rs. 71 in one case and Rs. 242 in the other case. It is true that the matter was delayed four years by the suit brought by the transferees for declaration of their status, but it cannot be said that the suit was a frivolous suit and they cannot be blamed for coming to the Court for adjudication of their rights. The compensation is reduced to 10 (ten) per cent, of the transfer fee in each case. With this modification the rules are discharged. There will be no costs in this Court.