Paras Singh and others vs Shiu Pujan Singh and others

Macpherson, J.—The appellants brought two rent suits in respect of bhaoli holdings for the rent of the years 1337 and 1338 Fs. The defence was that the rent was naqdi. The first Court decreed the suit for the amount claimed. In appeal the finding that the holdings were bhaoli was maintained and a decree was passed at the rate of Rs. 5 per bigha with damages and costs.

To the plaintiffs'' second appeal a preliminary objection is taken that such an appeal docs not lie on the ground that the value of the appeals is Rs. 8 and Rs. 13, respectively. Reliance is placed upon S. 153, Ben. Ten. Act. Mr. B.P. Singh for the appellants contends that he comes under the proviso to that provision which excepts from non-appealability a decree or order in which has been decided a question as to the amount of rent annually payable by the tenant. Now, it need not be doubted that if the appellants were aggrieved by the decision of the question of bhoali versus naqdi, an appeal would lie. The decision of this Court in Wazir Ali v. Mt. Mahimunnissa, 1918 Pat 637 = 43 IC 777, which is finally based upon the decision in Kali Mondul and others Vs. Ramsarbeswar Chakrabutty , supports this view. But the question has been decided in favour of the plaintiffs and in my opinion in such circumstances the fact that a question as to the amount of rent annually payable by the tenant has been decided is not sufficient to render admissible an appeal from the decision of the suit or appeal as a whole on other matters which have been there decided.

In my opinion the preliminary objection prevails and the appeal must be dismissed. Mr. B.P. Singh then requests the Court to exercise its powers in revision. His suggestion is that while in form the decision on the question of bhaoli and naqdi has been in his favour in substance the decision has been against him. It is true that the defendants produced receipts showing money payment of Rs. 5 per bigha had been realised from them in respect of the hakimi share of the produce and that the same amount has been allowed by the lower appellate Court. But the position is that the plaintiff had to prove what the produce, was in the two years in suits, and the lower appellate Court finding that he had been unable to prove the amount of the produce and consequently the value of his share of the produce, was constrained to fall back upon the amount which had actually been realized by the plaintiffs in previous years failing which he must have dismissed the suits altogether for lack of proof as to what the produce was and what its value was.

There is not even error of law in this procedure. But it is further urged that the learned District Judge altogether forgot the provisions of S. 71 (4), Ben. Ten. Act, which provides:

If the tenant removes any portion of the produce at such a time or in such a manner as to prevent the due appraisement or division thereof at the proper time, the produce shall be deemed to have been as full as the fullest crop of the same description appraised in the neighborhood on similar land for that harvest.

In connexion with evidence produced in respect of the year 1337 of an experimental crop-cutting conducted in that village. (It is clear that the argument does not apply to the year 1338 at all). As regards the year 1337 perusal of the judgment under appeal goes to show that the learned District Judge did not absolutely refuse to rely upon the crop-cutting experiment, but field that such a report by itself could not be made the basis for passing a decree in these suits, especially when that would give treble the rates arrived at by mutual arrangement between the parties a few years before. In short, he was unable to find that any proof which he could accept had beer adduced of the quantity of produce in the year 1337. I cannot find that there was any error of law, still less a failure or irregular exercise of jurisdiction such as is required to warrant interference in revision.

The result is that the order of the Court below must stand. The respondents are entitled to the costs of these appeals. There will be a single pleader''s fee divided equally between the two appeals.