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Calcutta High Court
Jatindra Nath Roy And Anr. vs Indu Bhushan Basu on 18 November, 1926
Equivalent citations: AIR 1927 Cal 410
Author: Cammiade

JUDGMENT

Cammiade, J.

1. This is an appeal by the plaintiffs against the dismissal of a suit by the Court of appeal below. The suit was for rent of a holding bearing an annual rental of Rs. 8-4-0 for the years 1325 to 1328. The total amounts claimed excluding cess and damages comes to Rs. 34-0-6. The suit was decreed in the first Court but it was dismissed on appeal.

2. A preliminary objection has been taken to the hearing of this appeal on the ground that none of the questions which make the decision appealable have been decided by the Court of appeal below. When we turn to the judgment of the lower Court we find that although the defendant admitted the tenancy and although he admitted the anuual rentali and there was no plea of payment by him, the learned Subordinate Judge dismissed the suit on the ground that the lands described in the plaint as comprised within the tenancy are not the properties of the plaintiffs but are the properties of the defendant. As there is no dispute regarding the existence of the relationship of landlord and tenant or with regard to the amount of rent due, which are ordinarily the only two matters to be considered in a suit for rent, the Subordinate Judge went out of his way unnecessarily in considering what lands were or were not comprised in the tenancy. It is useless to contend that because the Subordinate Judge has decided this question unnecessarily, therefore, his judgment cannot be made appealable on account of the irrelevancy of the decision on the question of what lands are comprised in the tenancy. If he had not decided the question he must have necessarily decreed the suit and dismissed the appeal. Therefore, his decision that the lands which are described in the plaint are the properties of the defendant and not the properties of the plaintiff gives the plaintiff the right of appeal. I, therefore, overrule the preliminary objection.

3. As regards the point of law arising in the case, as I have already said the rent being admitted, the tenancy being admitted and there being no plea of payment, the Court had no option in the matter and was bound to give a decree. It is not necessary for the Court to enter into the question of what lands are comprised in the tenancy.

4. The appeal is allowed. The decree of the Court below is set aside and the suit will be decreed with costs in all Courts with interest at per 6 cent, per annum, until realization.

5. As the Courts below have disagreed on the subject of what lands are comprised in the tenancy that question will be left open between the parties.


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