Kali Prosunna Basu Roy Choudhury vs Sheikh Asgar (Talukdar) and Another

Newbould, J.—This is an appeal against the decision in a rent suit. In my opinion, the preliminary objection taken on behalf of the respondents that no appeal lies must prevail.

The appeal is valued at Bs. 7-11 annas and no question has bean decided whish under session 153, Bengal Fenancy Act, makes a second appeal lie in this Court. It is contended that on the question regarding title to land in dispute, conflicting claims have been decided. The learned Subordinate Judge starts his judgment by stating that he would confine himself to title determination of the question whether the relationship of landlord and , tenant subsists between the plaintiff and the defendants, and it is not necessary for him to enter into the question of title. This itself indicates that no question of. title has been decided. It is true, as pointed out, that at the end of the judgment the learned Subordinate Judge has come to a finding that the pro forma, defendants had been in adverse possession to the plaintiff and thereby his right to recover rent from the defendants was barred by lapse of time. But apart from the opening remarks which I have quoted, this decision was a decision which must be inoperative because it decides a question that never arose in the suit. The pro forma defendants never set up title adversely to that of the plaintiff, or alleged that they had dispossessed him. If the Court in its judgment comes to a finding on a point which is not in issue in the suit, such a finding cannot have any effect.

I, therefore, hold that u/s 153 of the Bengal Tenancy Act no appeal lies, and I accordingly dismiss the appeal with costs.