Bachu Tanti and others vs Nathuni Singh

Fazl Ali, J.—This appeal which is valued at Rs. 19-14-0 arises out of a suit for recovery of shikmi rent which was dismissed by the Court of first instance but decreed on appeal. The only point urged before us in this second appeal which has been preferred on behalf of the defendants is that no appeal lay from the decision of the Munsif in this case and the decision of the Subordinate Judge therefore is without jurisdiction. In order to understand the true position, it will be necessary to refer briefly to the respective cases of the parties. The plaintiff''s case was that the defendants were his shikmi tenants and they were liable to pay an annual rent of Rs. 4-4-0 including cess. The defendants on the other hand asserted that the plaintiff could not recover rent from them as the raiyati rights in the land had been purchased by their uncle Gobardhan. In para. 4 of the written statement filed by defendant 3 it was stated that Gobardhan was the manager of the joint family to which the defendants belonged and it was further stated in paras. 5 and 6 that the defendants had constructed a house and had paid rent for the years in suit to the proprietor of the village, The trial Court accepted the case of the defendants but the lower appellate Court held that the defendants had failed to establish the alleged oral sale of the disputed land to Gobardhan and that they were shikmi tenants as alleged by the plaintiff.

The question to be determined is whether the decree of the first Court decided a question relating to title to land or to some other interest in the land as between parties having conflicting claims thereto. If it is held that such a question was not decided, no appeal lay from the decision of the Munsif under S. 153, Ben. Ten. Act, but if it is held that such a question was decided an appeal did lie. Mr. S.K. Mitra who appears on behalf of the appellant has drawn my attention to certain cases in which it was held that a mere decision that the relationship of landlord and tenant does not exist between the parties will not make the case appeasable if it is otherwise not appeasable under S. 153. Learned counsel has also laid some stress on the expression "having conflicting claims thereto" and contends that this expression must not be lost sight of in determining whether a question of title has been decided or not. The lower appellate Court has considered the very argument which has been advanced in this case and overruled it on the ground that the present case is covered by a decision of this Court in Babua v. Mt. Sarli, 1916 Pat 138 = 39 IC 233 = 20 CWN 1852. In that case the plaintiff brought a suit for rent against the defendants claiming that she was a raiyat of the land and the defendants were her under-raiyats and liable to pay rent to her and the defendants denied that they were under-raiyats under the plaintiff but pleaded that their father had purchased the land from the heir of the admitted previous raiyat of the land and that they had been holding the land as the raiyat of the land.

Both the trial Court and the first appellate Court found that the plaintiff had been in possession for a number of years and that the defendants had failed to prove that they ever held the land as raiyats of the landlord. In these circumstances it was held that a second appeal was not barred under S. 153, Ben. Ten. Act, as the Courts below had decided a question of title between the parties having conflicting claims thereto. The only point of distinction between the case to which I have referred and the present case is that in the previous case the defendants'' plea was that the land had been purchased by their father, whereas in the present case the land is said to have been purchased by their uncle. Learned counsel for the appellant further maintains that the fact that Gobardhan was not impleaded in the suit as a defendant is an important distinguishing feature of this case. But it appears to me that that fact by itself should not make any difference inasmuch as the defendants asserted in their written statement that Gobardhan had purchased the land as manager of the joint family and that they themselves had paid rent of the land to the maliks. By making these allegations they raised a direct issue as to title as between themselves and the plaintiff and that issue had to be decided by both the Courts below. S. 153 provides that even though a case may otherwise fall under that section the right of appeal will not be taken away, if a question relating to title to land as between the parties having a conflicting claim thereto has been decided. There can be no doubt that such a question was decided in this case by the trial Court and that appears to me to be sufficient to dispose of the preliminary objection raised on behalf of the appellant. Learned counsel contends that no question as to title could be raised unless Gobardhan was impleaded as a defendant in the suit. The section however does not make any reference to the necessity of impleading all the necessary parties in the suit and all that is required is that the question of title should have been decided. This condition, as I have already stated, is fulfilled in the present case and it appears to me therefore that the appeal to the District Judge was competent and the Subordinate Judge had jurisdiction to deal with it.

The only other argument which is put forward on behalf of the appellant is that no decree can be passed in the present suit as Gobardhan, who according to the defendants was a member of the joint family has not been made a patty. The plaintiff however cannot be bound by the allegations made by the defendants and cannot be deprived of a decree merely because the defendants alleged that Gobardhan had some connexion with the family. As has been pointed out by the learned advocate for the respondent at no previous stage of the present litigation was it contended on behalf of the defendants that the suit should fail for conjoiner of a necessary party or that it could not proceed in the absence of Gobardhan. In these circumstances I would dismiss the appeal with costs.

Luby, J

I agree.