Abdul Rahman and Others vs Budhu

Reuben, J.—This petition has been filed by the defendants first party, in a suit for recovery of immovable property.

The plaintiff''s story is that a raiyati settlement of 1.78 acres of land was made with him by the original landlord, that, out of this land, the landlord''s right in respect of 1.07 acres, which comprises the subject-matter of this suit, was purchased by the defendants first party, and that, since the purchase, the defendants first party have wrongly dispossessed the plaintiff. He, therefore, seeks recovery of possession, and has paid court-fee u/s 7, Clause (xi) Sub-clause (e), Court-fees Act. The objection of the defendants first party is that the suit raises a question of title and should be valued for purposes of court-fee and jurisdiction u/s 7, Clause (iv) and, on this valuation is beyond the pecuniary jurisdiction of the Munsif.

The case came before me sitting singly, and I referred it to a Division Bench in view of a decision of Ross J. in Krishna Chandra Gauntia Vs. Raja Mahakur, with which I found myself unable to agree.

It has been laid down that, for purposes of court-fee and jurisdiction, valuation should be made on the plaint as it stands ( Narayan Jha Narone and Others Vs. Jogni Prasad Jha and Others, ) Reading the plaint in this suit, I have no doubt that it is covered by Section 7 Clause (xi), Sub-clause (e), Court- fees Act.

The case before Ross J. arose out of a suit for declaration of title as an occupancy raiyat and for recovery of possession on the allegation that the plaintiff having settled the land with the appellant and having further agreed to make a perpetual settlement of it with him, wrongfully dispossessed him from the land. His Lordship, relying upon Balasi-dhantam v. Perumal Chetti, 27 MLJ 475 : 1915 (2) Mad 654 and Pramatha Nath v. Amiraddy, 240 CWN 151: AIR 1920 Cal. 205 held, that the suit involved an investigation of a question of title and, therefore, fell within the provisions of Section 7(v), Court-fees Act. With all respect, it seems to me that neither of these decisions is an authority for the con-elusion arrived at by his Lordship. The Madras case was a suit u/s 1, Clause (xi), Sub-clause (cc), for the recovery of immovable property from a tenant after expiry of the tenancy. The defendant raised a question of title, namely, that the plaintiff was not the landlord but merely a mortgagee whose right to possession had terminated by the deposit of the mortgage dues. The High Court, being satisfied as to the plaintiff''s right to possession, refused to investigate the nature of his title and upheld the decision of the Courts below decreeing the suit. All that the High Court refused to investigate was, as I say, the nature of the interest of the plaintiff in the suit, but it did investigate the question as to whether there was a relationship of landlord and tenant between the plaintiff and the defendant to form the basis of a suit of this kind. In the Calcutta case, the suit was for the recovery of immovable property from two sets of defendants, again, on the allegation that the tenancy under which they held had terminated. The first set of defendants admitted the tenancy. The second set denied the relationship of landlord and tenant and set up the title of a third party as landlord. The Court of first appeal refused to investigate the title as between the rival landlords, but investigated the existence of the alleged relationship of landlord and tenant between the plaintiff and the second set of defendants and answered it in the negative. On this finding, the High Court held that the suit u/s 7, Clause (xi), Sub-clause (cc), could not proceed against the defendants second party. This was a case where their Lordships refused to investigate the title as between the plaintiff and the third party set up by the second set of defendants, but the existence of the relationship of landlord and tenant between the plaintiff and the contesting set of defendants was investigated and, being answered in the negative, it was held that the suit u/s 7, Clause (xi), Sub-clause (cc), could not proceed. In this view of the matter, it cannot be said that, merely because a question of title arises, the suit will not lie u/s 7, Clause (xi). For this clause to apply, the existence of the relationship of landlord and tenant is necessary, and an investigation into its existence is within the jurisdiction of the Court. Further, it is possible to imagine cases where the investigation of this question may involve an investigation into what may appear, at first sight, to be a question of title involving a third party. I may cite as an instance G.A.S. Shanmuga Nadar Vs. P.S.P. Kandaswami Nadar, another suit u/s 7, Clause (xi), Sub-clause (cc), in which the plaintiff claimed as a transferee from the landlord who had created the tenancy in question. The jurisdiction of the Munsif to try the suit was challenged on the ground that the suit was governed by Section 7, Clause (v), Court-fees Act, and was beyond his pecuniary jurisdiction. In dismissing the petition, Cornish J. made it clear that it was open to the Munsif to go into the question of the validity of the assignment under which the plaintiff claimed his title--a question necessary to be decided in order to determine whether there was a relationship of landlord and tenant between the parties.

That a suit of this sort is covered by Section 7, Clause (xi), Court-fees Act, is clear from Govinda Kumar Sur and Others Vs. Mohini Mohan Sen and Others, a case under Sub-clause (cc), in which their Lordships held that the Court was entitled to find if there was a relationship of landlord and tenant between the plaintiff and the defendant, and whether the defendant''s tenancy had been validly terminated. They ruled that, if any question of title is raised in the suit, it can only be gone into for the purpose of determining the main question about the existence of this relationship between the plaintiff and the defendant. There is a further proposition about a possible conversion of a suit into a suit of another nature--a proposition with which we are not concerned here and which I have discussed elsewhere. This decision, so far as it is relevant to the present case, was approved by a Special Bench of this Court in Narayan Jha Narone and Others Vs. Jogni Prasad Jha and Others,

Mr. Rahman, on behalf of the petitioners, has referred to Furzand Ali v. Mahanth Lal Puri, 32 Cal. 268 Mt. Bhagobai Devisingh v. Shiamlal Dwarka Prasad, AIR 1933 312 (Nagpur) and Bam Ekbal Singh v. Baldeo Singh, AIR 1914 Cal 791: 25 IC 507. These were all cases between the tenant who alleged that he was wrongly dispossessed on one side and the landlord and a rival tenant said to have been settled by him on the other. These suits involved a question of title as between two rival tenants and were rightly held not to be covered by Section 7, Clause (xi).

On the above grounds, I would dismiss this petition with costs. The hearing fee is assessed at one gold mohar.

Narayan, J.

I agree.