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Sudhanya Santra and anr. Vs. Basanta Kumar Sarkar and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in61Ind.Cas.194
AppellantSudhanya Santra and anr.
RespondentBasanta Kumar Sarkar and anr.
Cases ReferredFakeer Mondul Gain v. Arshad Molla
Excerpt:
bengal tenancy act (viii of 1885), section 153 - rent-suit--relationship of landlord and tenant sole, issue decided--appeal, whether competent. - .....who was specially empowered under section 153 of the bengal tenanay act. the plaintiffs claimed 16 annas rent from the defendants on the allegation that they had inherited a 6 annas and 8-gundas share in the malki right for their mother and 9-annas and 12 gunias ijara right from their father. the contesting defendants admitted the plaintiffs mal right to the extent of 6-annas and 8 gundas but denied the existence of any ijara tight. the munsif found that the plaintiffs established their iiara right as well as the admitted maiki right and gave the plaintiffs a decree for the rent claimed. on appeal the learned district judge held that no appeal lay, citing as an authority, the case of bavlya nath bahara v. dhon krishna sirkar 5 c.w.n. 515. against this decision of the lower appellate.....
Judgment:

Newbould, J.

1. This appeal arises out of a rant suit which was heard by a Munsif who was specially empowered under Section 153 of the Bengal Tenanay Act. The plaintiffs claimed 16 annas rent from the defendants on the allegation that they had inherited a 6 annas and 8-gundas share in the malki right for their mother and 9-annas and 12 gunias ijara right from their father. The contesting defendants admitted the plaintiffs mal right to the extent of 6-annas and 8 gundas but denied the existence of any ijara tight. The Munsif found that the plaintiffs established their iiara right as well as the admitted maiki right and gave the plaintiffs a decree for the rent claimed. On appeal the learned District Judge held that no appeal lay, citing as an authority, the case of Bavlya Nath Bahara v. Dhon Krishna Sirkar 5 C.W.N. 515. Against this decision of the lower Appellate Court this appeal has been preferred and the appellants have also obtained a Rule in case it should be held that no second appeal lay to this Court, As regards the question whether an appeal lay to the lower Appellate Court, it is urged tint the Munsif's decision decided the question of the amount annually payable by the tenant. It is contended that the point is covered by the decision of the Full Bench in the are of Narain Mahton v. Manoji Pattuk 17 C. 489 (F.B.) : 8 Ind. Dec. (N.S.) 865. In that case the point actually decided by the Full Bench was in the following terms that the words, Amount of rent annually payable by a tenant, occuring in Section 153(a) of the Bengal Tenancy Act, include the case of rent payable by a tenant to one of his co-sharer-landlords who collects his share of the rent separately,' It seem to me that the decision in that case cannot be made applicable to the fasts of the present, The plaintiffs were not, either on their pleadings or on the findings of the Court below sharer landlords who were collecting their share of the rent separately. The issue on which the parties went on trial was framed in the following terms: 'Was there any of a 9-annas 12-gandas share in favour of Rim Narain Sarkar and have the plaintiffs inherited the same? Are the defendants liable to pay 16 annas rent to the plaintiffs.' That is to say, the issue between the parties was not one as to the amount of rent but as to the title was set up was not a party to the suit, there could be no decision of a question of title as between parties having conflict toting claims thereto. As, in the case relied on by the lower Appellate Court, if the defendant was liable to pay the whole rent to title plaintiff, that was no dispute as to that amount of rent payable. The only issue a dispute was, whether the relationship of landlord and tenant existed between the parties with regard to the entire holding and that was the only issue decided. The view I take, that the Full Bencher ferrous above cited is not applicable to a case of this sort, was also taken by a Single Judge of this Court in the case of Fakeer Mondul Gain v. Arshad Molla 10 C.W.N. cclxxx (280) of which a short note will be found in IX of the calnutta Weakly Notes at page cclxxx, I, therefore, hold that the commission of the lower Appellate Court that no appeal lay was right, and dismiss the appeal with cost, The Rule is discharged but without costs.


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