Ernest Mylne vs Nathu Sundi and Others

Roe, J.—These appeals arise from decisions of the Court of the Subordinate Judge of Shahabad confirming a decree of the Munsif of Arrah, rejecting the plaintiff''s claim for what he called in his plaint "Mutharfa rents." The learned Munsif had held on the third issue framed that the suits were cognizable by a Small Cause Court, but instead of returning the plaints to be presented in the Small Cause Court he proceeded to dismiss them upon the merits. On appeal the issue was again raised, whether the lower Court had jurisdiction to try the suits. Upon this question the learned Subordinate Judge decided that Mutharfa rents were ground rents and that suits for such rents were not cognizable by a Small Cause Court. The distinction between a house rent and a ground rent lies in the contract between the lessor and the lessee. If a lessee takes a parcel of land and then builds a house upon it, the rent that he pays to his lessor is a ground rent. If the lessor builds the house and then lets house and land together, the rent is a house rent. This I understand to have been the basis of the decision in the case decided as Uma Churn Mandal v. Bijari Bewah 15 C. 174 : 7 Ind. Dec. 700. In my view the learned Munsif should have gone into the issue whether he had jurisdiction to try the oases or not, before he proceeded to try them, and to satisfy himself as to his jurisdiction he was required to examine the plaint and decide on the plaint and not on the written statement what was the nature of the claim. The plaint has been read out to me. I do not find in it one word regarding land or any contract to pay rent for land. It is said that the defendants have houses, and that for the privilege of occupying those houses they are liable to pay yearly a certain sum. On the plaints as framed clearly the sums claimed were either house rents or as set out in the judgment of Chamier, C.J., in the case of Mahboob Momin v. Bhagwati Prasad 39 Ind. Cas. 949 : 1 P.L.W. 541 : (1917) Pat 250 taxes and not rents at all. The evidence given in the case by the plaintiff''s agent (which evidence may be now taken for the purposes of the argument as a statement explaining the nature of the claim) shows that the sum levied as Mutharfa is levied irrespective of the area of the land upon which the tenant builds and irrespective of the dimensions of the house which the tenant has built upon the land. Whether we regard such a levy as a rent or a tax a suit to recover it is cognizable by the Small Cause Court. The learned Munsif had, therefore, no jurisdiction to try it, and the learned Subordinate Judge, had he decided this point in this way, would have set aside his order and directed him to return the plaint for presentation in the proper Court, as was done in the case of Musammat Edoo v. Shaikh Hefazut Hossein 13 W.R. 358 : 5 B.L.R. App. 15.

If I am wrong on this point and if the suits can be regarded as suits for ground rent, I may say that in my view the appeal is concluded by findings of fact. The expressions used by the learned Subordinate Judge are not peculiarly happy, but he does find as a fact that there has been no satisfactory evidence to show that these defendants voluntarily agreed to pay Mutharfa rents after 1310 F. S., nor is there any satisfactory evidence to prove usage or custom. If the sums be regarded as ground rents it was necessary for the plaintiffs to show an attornment to them by the defendants as tenants. Both the Courts below are agreed that there was no such attornment and if indeed any rents were realized they were realised by force and not under any contract. They were in a sense bribes to the landlords to be left in peace and not acknowledgments of any liability to pay yearly rent. The payment of such bribes would not create the relationship of landlord and tenant and, therefore, the suits as suits for ground rent were not maintainable. The order of the Court is that the Munsif be directed to return the plaints to the plaintiffs in these sixteen oases. The costs of this appeal and of the appeal to the lower Appellate Court will be paid by the appellants to the respondents.

There will be no order as to the costs of the Munsif''s Court.