Aliar Kunjra vs Hazari Mull and another

Wort, J.—The only point argued on this rule against the decision of the Small Cause Court Judge of Sassaram is whether the Court had jurisdiction to try the suit. It is contended by the defendant against whom judgment was delivered in the Court below that the case comes either under Art. 8 or Art, 13. Small Cause Courts Act, and therefore the jurisdiction of the Small Cause. Court Judge is excluded. The action was for a trifling sum of only Rs. 8, but it may in spite of that, be of some importance generally.

The plaintiffs position with regard to the matter comes in under a patta executed by the Municipal Commissioners in their favour. They are there described as lessees, but it is quite clear from the provisions of the patta generally that the expression "lessee" does not conclude the matter, and indeed as a matter of law it must be said that the use either of the word "landlord" or "tenant" or "lessor" or lessee" does not conclude the question, nor make it necessary for the Court to decide that that was the relationship between the parties. An illustration of that in the English Courts is given by the case of Frank Warr & Co. Ltd. v. London County Council, (1904) 1 K B 713. It is not unimportant to notice that in that case the Judges of the Court of appeal were considering the proper application of the term "interest in land" used in the Lands Clauses Consolidation Act, to the particular facts of the case. They there decided that although there were many clauses in the agreement between the parties in that case which would lead the Court to suppose that it was a lease, in fact on its proper construction it was nothing more than a license. Now this point is relevant to the argument relating particularly both to Arts. 8 and 13, Small Cause Courts Act. It is said that the defendant here is a lessee or tenant of a holding of the market. It is therefore rent, and not being house rent is admittedly excluded by the operation of Art. 8. But it would surprise me to learn that a person who occupies a Bite in a market has such an interest in land as would give rise to an action for rent for which he is liable for occupation of that site. It is impossible to hold that a person in that position would be liable for anything other than market toll or a sum of money in respect of a license by which license he is allowed to occupy a small portion of a market place for the sale of his goods. I shall have no hesitation in coming to the conclusion that it is not rent and therefore it would not come under Art. 8.

But the other article does raise some difficulties. The most important case in favour of the petitioner''s contention is Abdul Hamid Khan v. Babu Lal, (1913) 35 All 156 = 18 I C 282 where it was held that a person who was the lessee of a ferry and who was entitled to levy tolls come under Art. 13. As the learned Judges held the right of ferry is.

no doubt a benefit, which arises out of the land and comes within the definition of immovable-property under S. 3 (25), General Clauses Act.

If it became necessary to consider the authority of Tudball, J., who was the learned Judge who decided that case, I might have found it necessary to come to a different conclusion. But in my judgment it gives no support to this case, neither does it throw any light upon it. What might have been the relationship between the lessee or the plaintiff in that case and the proprietor of the land in which the water was situate over which the right to ferry existed is a matter not disclosed by the case. What I have to consider in this case is whether within the meaning of Art. 13 the dues for which the defendant is liable arise by reason of the plaintiffs'' interest in an immovable property. I have already said and decided that there seems to be no doubt about the matter that the plaintiffs are nothing more than farmers of the dues payable in respect of the municipal market. A perusal of some of the clauses of the patta clearly brings out this position. Much that they do under the patta can be done only by consent of the Municipal Commissioners They in some instances are entitled to recover the dues themselves; but from the general provisions of the patta it will be seen that in payment of certain sums of money the plaintiffs are entitled to collect not what they can from the occupiers of the sites of the market, but the authorised amounts and certain other charges of various descriptions specified. The existence of this market has been brought about by S. 275, Bihar & Orissa Municipal Act, and in this connexion it is to be noticed that in S. 289 is used the expression farmer of the market which. I have already used. There can be no doubt that the position of the plaintiffs was that of farmers of the market. Now nothing in particular arises from the character or the nature of the dues payable by the defendant. Although I have already held that it was not rent, but everything else being equal the dues payable by the defendant would certainly come within the expression other dues under Art. 13.

But the question to be determined is whether those duos are payable by reason of the plaintiffs'' interest in an immovable property. In my opinion, as I have already said, the plaintiffs'' position was that of farmers. It would not be an easy matter to decide whether the plaintiffs were persons interested in an [immovable property, but what seems to me to conclude the matter is the expression which is used by Art. 13 of the Act which is dues payable to a person by reason of his interest. The dues payable by the defendant do not arise by reason of the plaintiffs'' interest in the immovable property, although it might he (but I do not decide the question) that they had such an interest. But the dues are payable by reason of the existence of the market and by reason of the statute which enables that market to be brought into existence, that his to say, S. 275, Bihar and Orissa Municipal Act and the Municipality to charge such dues. That in my judgment is a clear solution of this matter; and in those circumstances it seems to me that such dues are not rent within Art. 8 and are not dues which are payable to the (plaintiffs by reason of their interest in the immovable property and therefore the Small Cause Court Judge had jurisdiction.

In connexion with the earlier part of the case reference was made to the decision of Mookerjee, J., and Beacheroft, J., in Bandi Ali Fakir v. Amud Sarkar, 1915 Cal 135 = 26 I C 380 where the question of jurisdiction of the Provincial Small Cause Courts Act came up before the Court for determination with relation to charges made for certain ferry rights. Mookerjee, J., who delivered the judgment of the Court, bases his conclusion on the fact that ''rent'' used in Art. 8 was used not in the technical sense but in a wider sense and reference is made to the use of the word in the Conveyancing Act in England, 1881, and in certain other decisions which are to the effect merely that in certain cases and in certain circumstances ''rent'' is used not in the technical sense, but in a broader and wider sense. There can be no dispute about that, but I would respectfully say that the mere fact that that is so does not necessarily make it to follow that the legislature when enacting Art. 8 used a technical word therein in any other than the technical sense. But there appears to be another answer to the case to which I have made reference, and that is that the word ''rent'' is used with regard to forest rights (which were in dispute in that case) in the Bengal Tenancy Act and in those circumstances the case would be explained by that fact. But I determine this case before me on the ground that the dues payable by the defendant to the plaintiffs do not arise by reason of the plaintiffs'' interest in the immovable property. The rule is discharged with costs; hearing fee one gold mohar.