1. This is a reference from the District Judge of Dacca under Order XLVI, Rule 7.
2. A suit was brought in the Small Cause Court for recovery of damages against the defendant, who is said to have held some land under a contract to take half the proceeds as remuneration for his labour and expense. That was the case of the plaintiff. The defendant said that the case could not be tried by the Small Cause Court but he did not set up any special plea as to his being a tenant and, therefore, not amenable to the jurisdiction of the Small Cause Court. Upon the evidence, the learned Small Cause Court Judge found that the defendant was a servant who was remunerated by the receipt of half the produce. Upon that finding he gave a decree to the plaintiff.
3. There was an application to the District Judge for making a reference and he has made this reference. According to the learned Judge, the finding of the Trial Court as regards the nature of the suit is erroneous and the defendant ought to have been held to be a tenant against whom the present suit could not be entertained.
4. It has been contended by the learned Vakil who appears against the reference, first, that the reference is incompetent, and secondly, that the reference ought not to have been made under the circumstances of the case.
5. As regards the first point, we do not think it can be maintained that the Court of Small Causes was not a Court Subordinate to the District Judge, and Order XLVI, Rule 7, contemplates a reference, of cases tried by the Small Cause Court, by the District Judge.
6. As regards the second point, we see that the Trial Court, upon evidence, came to the conclusion that the defendant was a servant remunerated by a part of the proceeds of the land. That was a finding of fact upon evidence before him, and unless we deem it expedient and proper to set aside that finding, we do not see our way to accept the reference by the learned District Judge. In cases of revision under Section 115, Civil Procedure Code, or under Section 25 of the Small Cause Courts Act, we do not generally interfere with findings of fact arrived at by the first Court if those findings are supported by evidence before the Court, and in this particular case, we do not think that any case has been made out for our interference on a question of fact.
7. In this view of the case, we discharge the reference with costs, one gold mohur.