1. This appeal arises out o a suit for rent under the Bengal Tenancy Act. The plaintiff-landlord obtained a decree for the entire amount of his claim in the Court of first instance. The tenants-defendants preferred an appeal which was held as barred by the provisions of Section 153 of the Act. They preferred-a second appeal to this Court with the result that the decree of the Subordinate Judge has been set aside and the case has been remitted to his. Court for the appeal being dealt with on the merits. Against this judgment the present appeal has been preferred by the plaintiff under Clause 15 of the Letters Patent.
2. The judgment under appeal has held that a first appeal lay, notwithstanding the provisions of Section 153, for the decree of the trial Court decided a question of the amount of rent annually payable by the tenants. The plaintiff's case was that he bad purchased the interest of one Bepin from his sole widow Janaka Sundari. The defendants in their written statement challenged the factum and validity of the purchase by the plaintiff and averred that even if the purchase was established, the plaintiff was not entitled to claim 16-annas of the rent as Bepin had left 'two widows, namely, Janaka Sundari and Sukhada Sundari, and that the suit could not proceed in the absence of the latter who was a necessary party. I may observe in passing that in the written statement I do not find any statement that the plaintiff was entitled to 8-annas and not 16 annas of the rent, as I find stated in the judgment under appeal. That, however, is not a matter of much importance. The Munsif found that Janaka Sundari was the sole widow left by Bepin and decreed the suit for the amount claimed. The issues raised, or rather the points for determination set out, in the judgment of the Munsif were: 1st. Does the relationship of landlord and tenant exist between the parties? 2nd. Is the suit bad for defect of party? 3rd. Is the defendants' plea of payment true and 4th. What relief, if any, is the plaintiff entitled to? My learned brother Chakravarti, J., has observed, and in my opinion rightly, that whatever may be the wording of those questions for determination, the matter for consideration, in order to determine whether an appeal lay or not, is a matter of substance and not of form. He was of opinion that if the question raised by the defendants was determined in their favour it might be that the plaintiff instead of getting a decree for the 8-annas of the rent might not get any decree for rent because the other co-sharer was not a party to the suit and the suit might fail. He, however, look the view that the determination of the first and the second issues set forth above involved the determination of the question as to whether the plaintiff was the sole landlord or a landlord to the extent of an 8 annas share and, therefore, the decree for the entire rent must be read as a decree determining that the amount of rent payable was 16 annas and overruling the defence of the defendants that it was only 8-annas and not mere.
3. In a matter like this which relates to the curtailment of a right of appeal if there is the slightest doubt in one's mind, the benefit of that doubt should go to the party who seeks to appeal, and were it not for the opinion that I have formed, namely, that to adopt the aforesaid line of reasoning would be practically to make the provisions of Section 153 nugatory by putting it in the power of the tenant to defeat the said provisions by taking a defence of this character, however unsubstantial it may be, I would not have touched the judgment of my learned brother in this case.
4. In a suit for rent the tenant may dispute the amount of the rent of the tenure or holding or the landlord's title to the entire rent or to the share of the rent which he claims and may allege that the amount of the rent or the share is less. In such cases if the defence is pressed, the landlord is called upon to prove the amount of rent or is put to the proof of his title to the share pr to the amount which he claims, as there is a real controversy between the parties on these points and the Court has necessarily to decide a question of the amount of rent or the rent payable to the landlord, whichever way the decision may go; There may be cases, however, where the aforesaid defences of the tenant are dependent entirely on his averment that there is a co-sharer or there are co-sharers. In those cases it becomes necessary to go into these defences only in the event of the Court finding that there is a co-sharer or that there are co-sharers. If the finding be that there is no co-sharer of the plaintiff the other questions do not arise and there is no occasion or necessity for the Court to decide the question of the amount of rent. The decision of the Court in such cases, whether dismissing the suit on the ground of non-joinder of plaintiffs or decreeing the suit in plaintiff's favour, does not expressly decide and cannot by implication be held to have decided the question.
5. Certain decisions of this Court have been placed before us as explaining the law on the point and it is necessary to consider them in order to see whether they, in any way, militate against the propositions enunciated above. In the case of Sudhanya Santra v. Basanta Kumar Sircar 61 Ind. Cas. 733 : 49 C. 538 : 26 C.W.N. 96 : 34 C.L.J. 579 : A.I.R. 1922 Cal. 417 the facts were these: The plaintiff claimed rent at the rate of Rs. 8-3 8 on the ground that he had inherited a 6 annas 8 gandas share in maliki right from his mother and a 9-annas 12 gandas share in ijara right from his father. The defence was that the plaintiff was entitled to the 6 annas 8-gandas share in maliki right and not the 9-annas 12 gandas share in ijara right. The Court found that the plaintiff was entitled to both the rights, and gave a decree at the rate claimed. There was thus a substantial point in controversy, namely, whether the amount payable to the plaintiff was to be calculated at the rate claimed or two-fifths of that rate. This Court on a review of most of the authorities bearing on the point held that a question as to the amount of rent payable was determined as these words in Section 153 signified the amount of rent payable by the tenant to the landlord who had instituted the suit for rent, a question which had been settled by a Full Bench decision of this Court in the case of Narain Mahton v. Manoji Pattuk 17 C. 489 : 8 Ind. Dec. (N.S.) 865. This case clearly comes within the first class of cases to which I have referred, and there is an appeal. The next case is that of Wajuddi Pramanik v. Mohammed Bolai Morul : AIR1925Cal1032 . I have perused the original judgment of this Court in that case. The plaintiff claimed rent at Rs. 9 11 annas in his 4-annas share. The defence was, firstly, that plaintiff had other co-sharers in the 4-annas share in whose absence the suit was not maintainable, and, secondly, that the suit was also not maintainable as there had been no separate collection of the plaintiff's share of the rent. The trial Court gave effect to both these pleas and dismissed the plaintiff's suit. It was contended on the authority of the cases of Narain Mahton v. Manoji Pattuk 17 C. 489 : 8 Ind. Dec. (N.S.) 865 and Sudkanya Santra v. Basant Kumar Sircar 61 Ind. Cas. 733 : 49 C. 538 : 26 C.W.N. 96 : 34 C.L.J. 579 : A.I.R. 1922 Cal. 417 that from this decision an appeal lay as a question as to the amount of rent had been determined. This contention was overruled by this Court and it was held that no appeal lay from the said decision. This case falls within the second class of cases to which I have referred. In the case of Poresh Mani Dassya v. Nobo Kishore Lahiri 30 C. 773 : 8 C.W.N. 193 the plaintiffs claimed 8-annas share of the total rents alleging that though they were proprietors of an 1-anna odd-gandas share, by an amicable arrangement with their co-sharers they were entitled to realize the said 8-annas share, and the defendants disputed the amount of the jama and further pleaded that the plaintiffs were not entitled to recover more than 1-anna odd-gandas share, and the Court passed a decree for the last mentioned share. It was held that the 'question raised and decided was not merely the amount of rent payable to the co-sharer but whether he had a right to recover an 8-annas share of the rent' and an appeal lay. This is a case which clearly comes within the first class of cases to which I have referred. The case of Bashiram, Nath v. Dinanath De 51 Ind. Cas. 397 : 23 C.W.N. Ixxyi (76) was also referred to before us in this connection. In that case the objection to the competency of an appeal to this Court was taken when the appeal was from an appellate decree of the Subordinate Judge in which he had held that the plaintiff .was not entitled to the 16-annas of the rent he claimed but to only 8-annas of it as he had a co-sharer who was entitled to the other 8-annas share. This objection was overruled and, in my opinion, rightly as the case was one in which the question of the plaintiff's right was raised and determined. This case, it may be said, was one in which the existence of the co-sharer having been found it became necessary to decide the question of the share and in point of fact that question was decided. It was observed in the case of Sudhanya Santra v. Basanta Kumar Sircar 61 Ind. Cas. 733 : 49 C. 538 : 26 C.W.N. 96 : 34 C.L.J. 579 : A.I.R. 1922 Cal. 417 that the said decision was affirmed on appeal under the Letters Patent. The case of Fakeer Mondul v. Arshad Molla 10 C.W.N. cclxxx (280) also has been cited before us. In that case it was held that an appeal lay to this Court from a decree of the lower Appellate Court in which overruling the defendants' contention that the plaintiff had acquired only an 8-annas share a decree for the rent of 16-annas had been given to the plaintiff. It was held by this Court that no appeal lay. It will be seen, however, that doubt has been cast upon the authority of this decision [Sudhanya Santra v. Basanta Kumar Sircar 61 Ind. Cas. 733 : 49 C. 538 : 26 C.W.N. 96 : 34 C.L.J. 579 : A.I.R. 1922 Cal. 417.] Indeed the case would come within the first class of cases mentioned above and judged by the test laid down here an appeal should have been, held as- competent.
6. In the present case in view of the fact that it was found that the plaintiff had no co-sharer, I am unable to hold that the Court had any necessity to go into any question as to the share of the rent to which, the plaintiff was entitled, and I do not see that any such question was, in fact, decided. If we were to hold otherwise, it would be open to any defendant to state that the plaintiff has some co sharer and so he is not entitled to the whole rent and though this statement may be utterly false he would be able to get a right of appeal and defeat the provisions of Section 153, Bengal Tenancy Act merely by such an assertion, though there may be no controversy at all about the amount of rent which the Court may be called upon to decide. I am, therefore, of opinion that no appeal lay in this case from the Munsif's decision.
7. The decision of Chakravarti, J., is accordingly set aside and that of the Subordinate Judge restored with costs in the two appeals in this Court.
8. I agree.