SALIMUDDIN AHAMMAD Vs. RAHIM SHEIK

JUDGEMENT

(1.) This appeal arises out of a suit for rent under the Bengal Tenancy Act. The plaintiff landlord obtained a decree for the entire amount of his claim in the Court of first instance. The tenants defendants preferred an appeal which was held as barred by the provisions of Section 153 of the Act. They preferred a second appeal to this Court with the result that the decree of the Subordinate Judge has been set aside and the case has been remitted to his Court for the appeal being dealt with on the merits. Against this judgment the present appeal has been preferred by the plaintiff under Clause (15) of the Letters Patent.

(2.) The judgment under appeal has held that a first appeal lay, not withstanding the provisions of Section 153, for the decree of the trial Court decided a question of the amount of rent annually payable by the tenants. The plaintiff's case was that he had purchased the interest of one Bepin from his sole widow Janaka Sundari. The defendants in their written statement challenged the factum and validity of the purchase by the plaintiff and averred that even if the purchase was established, the plaintiff was not entitled to claim 16 annas of the rent as Bepin had left two widows, namely, Janaka Sundari and Sukhada Sundari, and that the suit could not proceed in the absence of the latter who was a necessary party I may observe in passing that in the written statement I do not find any statement that the plaintiff was entitled to 8 annas and not 16 annas of the rent, as I find stated in the judgment under appeal. That however is not a matter of much importance. The Munsif found that Janaka Sundari was the sole widow left by Bepin and decreed the suit for the amount claimed. The issues raised, or rather the points for determination set out, in the judgment of the Munsif, were: 1st, Does the relationship of landlord and tenant exist between the parties ? 2nd, Is the suit bad for defect of party ? 3rd, Is the Defendants plea of payment true ? And 4th, What relief, if any, is the plaintiff entitled to ? My learned brother Chakravarti, J., has observed, and in my opinion rightly, that whatever may be the wording of those questions for determination, the matter for consideration, in order to determine whether an appeal lay or not, is a matter of substance and not of form. He was of opinion that if the question raised by the defendant was determined in their favour it might be that the plaintiff instead of getting a decree for the 8 annas of the rent might not get any decree for rent because the other co-sharer was not a party to the suit and the suit might fail. He, however, took the view that the determination of the first and the second issues set forth above involved the determination of the question as to whether the plaintiff was the sole landlord or a landlord to the extent of an 8 annas share and therefore the decree for the entire rent must be read as a decree determining that the amount of rent payable was 16 annas and overruling the defence of the defendants that it was only 8 annas and not more.

(3.) In a matter like this which relates to the curtailment of a right of appeal, if there is the slightest doubt in one's mind, the benefit of that doubt should go to the party who seeks to appeal; and were it not for the opinion that I have formed, namely, that to adopt the aforesaid line of reasoning would be practically to make the provisions of Section 153 nugatory by putting it in the power of the tenant to defeat the said provisions by taking a defence of this character, however unsubstantial it may be, I would not have touched the judgment of my learned brother in this case. In a suit for rent the tenant may dispute the amount of the rent of the tenure or holding or the landlord's title to the entire rent or to the share of the rent which he claims, and may allege that the amount of the rent or the share is less. In such cases, if the defence is pressed, the landlord is called upon to prove the amount of rent or is put to the proof of his title to the share or to the amount which he claims, as there is a real controversy between the parties on these points and the Court has necessarily to decide a question of the amount of rent or the rent payable to the landlord, whichever way the decision may go. There may be cases, however, where the aforesaid defences of the tenants are dependent entirely on his averment that there is a co-sharer or there are co-sharers. In those cases it becomes necessary to go into these defences only in the event of the Court finding that there is a co-sharer or that there are co-sharers. If the finding be that there is no co- sharer of the plaintiff the other questions do not arise and there is no occasion or necessity for the Court to decide the question of the amount of rent. The decision of the Court in such cases, whether dismissing the suit on the ground of nonjoinder of plaintiffs or decreeing the suit in plaintiff's favour does not expressly decide and cannot by implication be held to have decided the question.