INDU BHUSAN BASU Vs. JATINDRA NATH ROY

JUDGEMENT

(1.) This is a Letters Patent Appeal from the judgment and decree of my learned brother Mr. Justice Cammiade. The suit was a rent suit and the plaintiff in his plaint set out certain survey plots, fifteen in number, as being the subject-matter of the tenancy. He did this in compliance with Section 148 of the Bengal Tenancy Act and also in compliance with the rules under the first Schedule of the Civil P. C. as amended by this Court. The jama which was claimed was Rs. 8-4-0. The defendant resisted on the ground that there was no relation of landlord and tenant between the plaintiff and himself in respect of these survey plots. He admitted that he held a jama at Rs. 8-4-0 under the plaintiff but not as he says, for these lands. The first thing that happened was that a local investigation was made by a Commissioner and the learned Subordinate Judge of the slower Court on appeal, came to the conclusion that it was not proved that there was any tenancy held by the defendant under the plaintiff of these fifteen survey plots. Having come to that conclusion he dismissed the suit being of opinion that he could not possibly give a decree for rent in respect of wrong lands or without specifying properly what laud is covered by the decree. So far it seems to me that the learned Subordinate Judge was right. My learned brother in this Court took the view that it was entirely unnecessary to consider what the lands were as long as it was agreed that there was some tenancy at the rent claimed. With reference to that contention I respectfully dissent. It appears to me that unless every rent-decree be definitely given in respect of a certain ascertained land the state of this province would gat even more confused in the matter of agricultural right than it is at present. I do not know how decrees can be worked out by any other method. No doubt, a mere incidental dispute about boundary has got nothing to do with a rent suit, but in this, case the plaintiff says that he was the defendant's landlord in respect of fifteen plots. The defendant's case was that no one of these fifteen plots was any part of the tenancy.

(2.) Then, the next question is that matter being disposed of, whether there was a right of appeal and if not whether the learned Judge should have interfered in revision. In my judgment if the Subordinate Judge's decree was right then it does not much matter whether there was a right of appeal or a right of revision.

(3.) The only other ground on which the judgment is really attacked is this. It is said that the learned Subordinate Judge acted on the report of the Commissioner and that this Commissioner when he went and examined the land on the spot did not record in writing evidence as he went along. As regards that I am quite clear here that if the parties had intended to call evidence to have it recorded they could have done so. I am not minded to interfere now on such a ground. As regards the question whether there was a right of appeal, the matter is a little exceptional. It was agreed or conceded at the trial that the land of this tenancy was really the land comprised in the kabuliyat, Ex. A, which the plaintiff or his predecessor had given to a superior landlord. The defendant claims to have the same and the Subordinate Judge agrees with him that these lands are not the lands of Ex. A. Therefore, it is said that that is as good as a decision that the plaintiff under Ex. A has got no claim to the lands, and that is a decision about the plaintiff's title. I do not really think that it was, because the only real decision is that these fifteen plots are not the lands which the plaintiff let to the defendant. Still the matter is complicated further because it seems that in the written statement the defendant set up that as regards the fifteen survey plots not only were they not the lands which he held under the plaintiff but that they were his own lands and he was in possession of them. The learned Subordinate Judge has not purported to find as a fact that these are the defendant's own lands, nor has he purported to declare that the defendant is in any way in possession of them. He has gone solely upon the question whether or not these are the lands comprised in the admitted tenancy of the defendant under the plaintiff. It is perhaps a nice question whether there Was any decision as to title. My own view is that there was none. Whether there was or not no longer matters.