Pandit Bikram Raj and Another vs Palak Nonia and Another

Manohar Lall, J.—These are two appeals by the landlord-plaintiffs who instituted two suits for recovery of rents against defend, ant 1 on the ground that he was their tenant. The defence in the action was that no relationship of landlord and tenant existed for the period in suit, i.e. 1337 to 1340 F., on the allegation that the rent claimed lands were in possession of one Thakuri Bhagat who was the tenant of the plaintiffs. This Thakuri Bhagat was allowed to contest the suit as an intervenor, and baying been joined in the action he put forward the same defenoe. The lower Appellate Court has reversed the decision of the trial Court and has held that the rent claimed lands in both suits are in possession of the intervenor and that they are not in possession of defend, ants 1 party and that they were never settled with those defendants. From this decision two appeals have been preferred to this Court, namely S.A. 182 and S.A. 205.

At one time I felt a difficulty as to whether any appeal lay to the District Judge in respect of the suit which is covered by S.A. No. 182 of 1935 because the amount of rent claimed in that suit was below Rs. 50.

But I am satisfied on a consideration of the decision of the Calcutta High Court in Bipin Chandra Majumdar Vs. Raj Kumar Sinha and Others, that in circumstances like the present where there is a conflict of interest or, to use more accurately the words of the Code, "where there is a question relating to title to land or some interest in land as between parties having conflicting claims thereto," an appeal does lie to the District Judge as well as a second appeal to this Court. Mr. Mitra for the appellants relied upon the decision in Gangadhar Karmakar v. Shekhar Basini Dasya A.I.R.1916. Cal 653 in support of his submission that an appeal and a second appeal are both barred under the circumstances of the present case.

It is enough to point out that in that case the learned Judges of the Calcutta High Court expressly stated that in that case the learned Munsif refused to go into the question of the conflicting claims which were advanced before him by the defendants and he decided the case simply on the ground whether rents had been collected by the plaintiffs from the defendants, and they observed as follows:

We are however of opinion that the ruling in Shilabati Devi v. Rodrigues 1908.35 Cal 547, which is perfectly general in its terms, applies equally to this case as to every other case in which there has been no actual decision of the conflicting claims or interests in the land.

In the present case there has been such a decision of the conflicting claims of Thakuri and defendant 1. I am now satisfied that the appeal before the District Judge in the case which gives rise to Second Appeal 182 was perfectly competent.

On the merits, I find that the Court below has not committed any error of law as was argued by the learned Counsel for the appellants. The learned Counsel for the appellants has drawn my attention to the fact that the learned Subordinate Judge has placed undue reliance upon a previous deposition of one Ramdular, a patwari of the plaintiffs, who was not a witness in the case, and he stresses the point that although it was true that the learned Judge had given his decision on the facts in the case, he was unduly influenced in more places than one by reason of the fact that he believed the entire case of the defendant Thakuri on the ground that it was supported by this previous statement of the patwari which was erroneously made an exhibit in the case.

To satisfy myself I went into the entire oral evidence and I am satisfied that it would be reasonably impossible for any Court of fact to come to a conclusion other than what the learned Judge has come to, namely that the oral evidence of settlement with the principal defendants cannot be believed; but there is a good deal of satisfactory evidence which is conclusive that the settlement was actually made with the intervenor for the rent claimed lands.

Upon this view of the matter I must dismiss these two appeals, but as the appeals were filed due to the error committed by the learned Judge in admitting the inadmissible evidence and placing undue reliance thereon, the appellants need not pay the costs of the respondents for this Court.