Decided on January 08,1935



Rangnekar, J. - (1.) MR. Kane on behalf of the respondents has raised a preliminary objection to this appeal that no second appeal lies.
(2.) THE question is whether the suit which has given rise to this appeal is a suit of the nature cognizable by a Small Cause Court, THE suit was to recover Rs. 24-5-7 as rent due in respect of the plaint property for two years including galli-patti and local cess. THE defendants' case was that the rent was fixed at six maunds and eight payalis, that the suit would not lie until the plaintiffs got a declaration that they were entitled to enhance the rent, and that the rent claimed was excessive. On the face of these pleadings it seems to me that the suit was of the nature cognizable by a Small Cause Court, and that being so, the objection must be upheld, and the second appeal must be dismissed. It is argued, however, by the appellant's counsel that the suit being to recover the amount of that and galli-patti, it could not be considered to be a suit of the nature cognizable by a Court of Small Causes, and he relied upon the decision in Madhavrao v. Rama (1914) 16 Bom. L. R. 746, but that was a case of a superior and inferior holder. The village in suit was not a Khoti village and the rules under the Khoti Act did not apply, and the liability of the defendants as tenants depended upon certain agreements and the course of conduct between the parties. It appears that certain agreements had taken place between this plaintiff and other sharers in the inam and their tenants. This, no doubt, concluded all other parties except the plaintiff who was a minor, and it was open to the minor to establish by evidence what his share in total rent came to. Apart from that, I am not satisfied that merely because the plaintiff sues to recover rent and calls it that or galli-patti or by any other name, the suit would not be cognizable by a Court of Small Causes. The second point taken by the appellant is that the trial was vitiated as the suit being of a Small Cause Court nature was tried as a regular suit. I find some difficulty in understanding this objection, because, admittedly, the Judge who tried the case was not invested with the powers of a Small Cause Court Judge, and as far as I can see, there is nothing in law which would disentitle a Judge, who has no Small Cause Court powers, to try a suit as a regular suit even though it may be of the nature cognizable by a Small Cause Court, "whether a suit is of such a nature or not is to be determined in the light of the provisions of Act IX of 1887. If a suit is of such a nature and the value of the subject-matter does not exceed Rs. 500, no second appeal will lie, even though it has not been tried in a Small Cause Court. It is the nature of the suit and not the Court in which it is tried that determines the right of appeal. [see Kalian Dayal v. Kalian Narer (1884) I. L. R. 9 Bom. 259, Lakshmandas v. Anna (1904) I. L. R. 32 Bom. 356 : s. c. 6 Bom. L. R. 731, and Indra Chandra Mukherjee v. Srish Chandra Banerjee (1913) I. L. R. 40 Cal. 537]. Apart from that the point was never raised by the appellant either in the trial Court or in the appeal, and, in my opinion, it is too late for him to raise that point now. The trial was allowed to proceed without any objection on the part of the appellant.
(3.) THE third contention is that the plaintiff alone being a co-sharers to the extent of two annas was not entitled to maintain this suit to recover his share in the total rent which was payable by the defendants to the inamdars. This contention also was not set up either in the trial or in the appellate Court, and I cannot allow the appellant to raise it here. Apart from that, however, it seems to me on the record that the case was that the plaintiff said that the defendant was liable to pay him his share of the rent as a tenant, arid the defendant said that the rent was not as much as claimed by the plaintiff and that the plaintiff was asking for enhancement, and that he really was a permanent tenant with a fixity of rent. If these then were the contentions between the parties, and the Court on evidence found that the share due to the plaintiff was so much, I am ' unable to appreciate the objection now made for the first time by the appellant. THE plaintiff's case was that he was an annual tenant at a certain rent. THE defendants' case was that he was a permanent tenant, and the plaintiff was asking for increased rent. It was never suggested that the plaintiff was claiming to recover more than his share in the total rent which the defendants were liable to pay in respect of their holdings. Apart from that, however, the position on the merits seems to be very simple. The suit was tried as a regular suit and the only question which was litigated by the parties was, what was the rent due to the plaintiff for the two years in suit. That depended on the evidence in the case, and both the Courts held that the rent was Rs. 19 and not Rs. 24 as claimed by the plaintiff. In arriving at that conclusion they considered certain abhavanis which were adduced by the plaintiff and the report of the commissioner appointed by the Court. This evidence clearly shows that the plaintiff was not entitled to recover anything more than Rs. 19, and it seems to me that the view of the lower Courts is correct, and the appeal must be dismissed with costs. .;

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