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Rahim Sheikh Vs. Salim-ud-dIn Ahammad and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Reported inAIR1926Cal1229
AppellantRahim Sheikh
RespondentSalim-ud-dIn Ahammad and ors.
Excerpt:
- .....bepin and that the plaintiff by his purchase from the widow of bepin was entitled to realize the rent payable by the defendants. the arrears claimed were for the years 1324 to 1327. the total amount of the claim was rs. 7-11-9. the defence of the defendants was that the plaintiff purchased assuming his purchase to be true, only from one of the widows of bepin, that there was another widow left by bepin called sukhada sundari and that the plaintiff was, therefore, entitled to only 8 annas share of the rent and not to the 16 annas. the defendants further contended that if the plaintiff was entitled to an eight annas share of the rent the suit would be defective because all the landlords had not sued jointly.2. the munsif who tried the case was especially empowered under section 153,.....
Judgment:

Chakravarti, J.

1. This is an appeal by Defendant No. 1 and arises out of a suit for rent brought by the plaintiff. The plaintiff's case was that he had purchased the interest of one Bepin from Janaka Sundari, the sole widow of Bepin, that the defendants held a jama at a rental of Re. 1-8 per year under Bepin and that the plaintiff by his purchase from the widow of Bepin was entitled to realize the rent payable by the defendants. The arrears claimed were for the years 1324 to 1327. The total amount of the claim was Rs. 7-11-9. The defence of the defendants was that the plaintiff purchased assuming his purchase to be true, only from one of the widows of Bepin, that there was another widow left by Bepin called Sukhada Sundari and that the plaintiff was, therefore, entitled to only 8 annas share of the rent and not to the 16 annas. The defendants further contended that if the plaintiff was entitled to an eight annas share of the rent the suit would be defective because all the landlords had not sued jointly.

2. The Munsif who tried the case was especially empowered under Section 153, Clause (b) to try special cases of rent of less than Rs. 50 in value. That Court held that Bepin left only one widow, the plaintiff's vendor and not two widows as contended for by the defendants. In that view there could be no defect of parties and the plaintiff would be entitled to receive 16 annas of the rent payable by the defendants and as there was no other defence established the suit was decreed in favour of the plaintiff.

3. Defendant No. 1 alone preferred an appeal to the learned District Judge who has dismissed the appeal holding that it was not competent as the suit was tried by an officer who was empowered under Section 153, Clause (b) of the Bengal Tenancy Act to try such cases. As I have already stated Defendant No. 1 appeals to this Court and it is contended by the learned vakil for the appellant that the appeal before the learned District Judge was competent, because the main question raised in the Trial Court was in substance a question as to whether the rent pay able to the plaintiff was the entire amount or only a moiety of it as payable to one of the two widows of Bepin.

4. It seems to me that this contention is well-founded. The fourth paragraph of the written statement distinctly raises the question, namely, that the rent payable to the plaintiff was not 16 annas but only 8 annas of the entire rent. That was a question which distinctly related to the amount of rent payable by the defendants to the plaintiff. The sole issue which was tried by the trial Court at considerable length and upon the evidence in the case, was as to whether the plaintiff was entitled to the 16 annas of the property as claimed by him or only to a half of that as alleged by the defendants, The trial Court came to the conclusion upon the evidence that the plaintiff was entitled to the 16 annas. Now Defendant No. 1 appealed to the learned District Judge and mainly raised the question as to whether the judgment of the learned Munsif deciding that the plaintiff was entitled to the 16 annas of rent was correct or not. True, if the question raised by the defendants was determined in their favour it might be that the plaintiff instead of getting a decree for 8 annas of the rent might not get any decree for rent, because the other co-sharers were not parties to the suit. But the result of the judgment and decree of the Munsif was that the defendants were liable to pay the entire amount of rent to the plaintiff and not eight annas as contended by them. This decision, therefore, in my opinion, clearly determines a question as to the amount of rent payable to the plaintiff by the defendants. That being so, the appeal would be competent under Section 153 of the Bengal Tenancy Act.

5. It was urged by the learned advocate for the respondents that although the question of the amount of rent payable by the defendants to the plaintiff was raised in the written statement the form of the issue was whether the suit was bad for defect of parties. But I may point out that the first issue raised the question as to the relationship of landlord and tenant existing between the parties. The determination of both these issues involved the question as to whether the plaintiff was the sole landlord or a landlord to the extent of 8 annas share. It may be that if the question was determined in favour of the defendants the suit might fail on the ground of defect in the form of the suit. But as the decree stands it did clearly determine that the amount of rent payable by the defendants was 16 annas overruling the defence of the defendants that it was only 8 annas and not more. In the appeal before the learned District Judge the defendant was entitled to raise the question that the amount of rent payable to the plaintiff was not the 16 annas but only 8 annas. It must be borne in mind that in considering whether an appeal is competent or not the substance of the matter must not be lost sight of. By the proviso to Section 153 of the Bengal Tenancy Act the Legislature clearly intended that any question which determines the amount of rent payable by a tenant is a question which can be agitated in appeal even against a decree of an officer specially empowered with final jurisdiction.

6. I am, therefore, of opinion that the appeal before the learned District Judge was competent and should have been entertained. In the result, I set aside the judgment and decree of the learned District Judge and send the case back to him to be tried on the merits in accordance with law. The appellant is entitled to his costs of this appeal. The other costs will abide the result. In connexion with this appeal there is an application which is not pressed.


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