SUKH LAL Vs. NANNOON PRASAD

JUDGEMENT

(1.) THIS application arises out of a suit brought by a nephew against his uncle and a tenant. It appears that a house which jointly belonged to the nephew and uncle had for many years been rented by defendant No. 2 and the whole rent used to be collected by the uncle. No doubt the nephew was entitled to a half share. THIS suit was brought to recover Rs. 180, being half of Rs. 360 which the uncle had been paid by the tenant. The suit was filed in a Court of Small Causes. Not only was no objection taken to the jurisdiction of that Court, but in paragraph 8 of the written statement the uncle specifically stated that he raised no objection to the Court trying the suit. Of course it is not open to parties to waive a question of jurisdiction, but for reasons to be stated later. I think this matter is of some importance. The Court, from the judgment which it has recorded, tried the case apparently very fully, and came to what seems to me a very just decision. Having lost the suit in that Court, the uncle applies to this Court for revision and for the first time raises the objection that the Court below had no jurisdiction to try the suit and he relies on Article 31 of the Schedule to the Act (Act No. IX of 1887). It is only the second part of that Article which could apply, that is to say, "a suit for the profits of immoveable property belonging to the plaintiff which have been wrongfully received by the defendant" is barred from the cognizance of a Court of Small Causes. Reliance has been placed on Rameshar Singh v. Durga Das 23 A. 437; A.W.N. (1901) 128, Uzir v. Hari Charan Pal 37 Ind. Cas. 671 and Nand Rani v. Swashwaneswar Mukerji 8 Ind. Cas. 270. It seems to me that it is by no means dear that this case comes within the scope of those rulings. It appears in this particular case that the rent had been paid for many years by the tenant to the uncle, I, therefore, do not see how it can be said that the uncle had wrongfully received the rent, the subject-matter of this suit. It seems to me to be an ordinary suit for money had and received. In any case, I feel that substantial justice has been done and the only result of this application would be further litigation, and that between an uncle and a nephew, and should hesitate to re-open the matter unless I am forced to. There is the authority of this Court in Ram Lal v. Kabul Singh 25 A. 135; A.W.N. (1902) 219, and I would refer also to the cases referred in Jadunandan Sahay v. Jung Bahadur Sahay 37 Ind. Cas. 991 : 1 P.L.W. 232 and National Insurance and Banking Co. v. Biswambar Choudhury 29 Ind. Cas. 566 which give me a discretion. As I have already stated, I doubt as to whether Article 31 strictly applies, and having also, I think, a discretion in the matter, I decline to interfere. The result is that the application is rejected with costs.