Gool Khan vs Tetar Goala

Maclean, C.J.—In this case the Plaintiff sued the Defendant in the Small Cause Court of Sealdah to recover a sum of Rs. 70, or so, under the following circumstances : The Defendant agreed to sell to the Plaintiff a small piece of land and the Plaintiff agreed to buy it. Subsequent to this agreement, a third party enters upon the scene, and says that the land is his, and he brings a suit to eject the present Plaintiff. To that suit the present Defendant is not a party. In that suit, the then Plaintiff was successful, and the present Plaintiff is ejected, thereupon he brings the present suit in the Small Cause Court to recover the purchase-money which he had paid for the land. The Defendant says that the Small Cause Court has no jurisdiction to try the case, as it falls within the exception provided by Art. 11 of the Second Schedule of the Provincial Small Cause Courts Act IX of 1897. That article runs as follows :-- "A suit for the determination or enforcement of any other right or interest in immoveable property." This case is not within that exception. The Plaintiff does not ask for the determination or enforcement of any right or any interest in immoveable property, he only asks to get his money back, although as a defence to the action it may be necessary for the Defendant, in order to be successful to show that he had a good title. It would be going very far to say that that article covers such a case as the present. Upon that point the Rule fails. We think that the Small Cause Court had jurisdiction in the matter. Upon the second point the Rule must succeed, for the judge has held that the judgment in the previous suit to which the present Defendant was not a party, was tantamount to res judicata upon the question of title in the present suit. I quite fail to appreciate how this can be, and in making this observation I am not unmindful of the recent decisions in the Privy Council, one Ram Ranjan v. Ram Narain Singh I. L. R. 22 Cal. 533 (1894) and the other Bitto Kunwar v. Kesho Pershad L.R. 24.I. A. 10 (1897); nor of the observations of a Full Bench of this Court, of which I happened to be a member, in the case of Basaraddi Sheikh v. Enajaddi Maleah I. L. R. 25 Cal. 298 (1897). On this ground the Rule must be made absolute. The result will be, that the decree of the Small Cause Court must be set aside and the case must be sent back to that Court to be tried on its merits, having regard to what I have said in relation to the effect of the judgment in the previous case. The costs of this Rule will abide the ultimate result of the trial, the hearing fee being fixed at 1 gold mohur.

Banerjee, J.

I am of the same opinion.