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Calcutta High Court
Khetra Mohan Saha Sardar And Ors. vs Akhil Chandra Das Bhowmik And Ors. on 2 December, 1926
Equivalent citations: AIR 1927 Cal 431
Author: Mukerji


Mukerji, J.

1. The first party defendants are the appellants in this appeal. The appeal arises out of a suit which purports to have been instituted as one under Section 149, Sub-section (3) of the Bengal Tenancy Act. A suit was instituted by the appellants, the first party defendants against the second party defendants for recovery of arrears of rent. The latter denied relationship of landlord and tenant in that suit and contended that the money payable by them was payable not to the first party defendants but to a third party, namely, the plaintiffs, and-they deposited the money under the provision of Section 149, Sub-section (1) of the Bengal Tenancy Act. Notice of such deposit was served upon the plaintiffs and the latter then instituted the present suit out of which this appeal has arisen. The suit has been decreed by both the Courts below and the substantial ground upon which the decisions of the said Courts have been challenged before us m that if the suit be treated as one under Section 149, Sub-section (3) of the Bengal Tenancy Act the reliefs asked for in the plaint in the suit as well as those granted by the Court below to the plaintiffs therein go far beyond the scope of the said suit and if the suit is treated as one for declaration of title of land then the subject-matter of the suit exceeds the pecuniary jurisdiction of the Court by which it was tried. The suit is under Section 149, Sub-section (3) of the Bengal Tenancy Act and the circumstances under which the suit was instituted are also circumstances which contemplated under that sub-section.

2. The reliefs sought for in the plaint were a declaration of title to Rs. 28-1-0 which was in deposit in Court in favour of the plaintiffs, a declaration that the first party defendants were not entitled to the said amount, an order that the said amount should not be paid out to the first party defendants and a direction that if the first party defendants had withdrawn the said amount then a decree might be passed in favour of the plaintiffs for recovery of the same from them. The reliefs that were granted by the Court of first instance and were confirmed by the lower appellate Court are substantially those that were claimed in the suit. Having regard to the prayers in the plaint and the decree that has been passed in favour of the plaintiffs it is quite clear that the reliefs go far beyond the scope of a suit which legitimately falls within the purview of Sub-section (3) of Section 149 of the Bengal Tenancy Act. As has bean pointed out by this Court in the case of Tirthabasi Singh Rai v. Paraa Chaadra Nag [1912] 16 C.W.N. 558, Sub-section (3) contemplates a suit which culminates not in a decree but in an order a limited kind, an order restraining payment out of the money and it is, therefore, an order not finally decisive but providing a machinery for the purpose of carrying out of the scheme whereby it is sought to relieve a tenant from harassment.

3. The Courts below have projected on the view that the suit was one which fell legitimately within the purview of this sub-section. The appellants, in my opinion, are perfectly right in the contention which they put forward that the view which the Courts below have taken of this matter is erroneous. The question then is whether we should set aside the decree which has been passed in this suit and order a fresh trial thereof. From a perusal of the allegations contained in the plaint, the prayers which the plaintiffs sought for therein and the reliefs that have been granted to them it is clear to my mind that the suit may very well be regarded as one for declaration of title to Rs. 28-1-0 and for certain sequential reliefs. It does not necessarily m an that the suit was for declaration of title to the land in respect of which the money was deposited in Court. If it was a suit for declaration of title to the land itself it would certainly not have been within the jurisdiction of the Court an which it was instituted. But if as I have said, the suit is regarded as one for declaration of title to the money and for consequential reliefs, and, in my opinion it may be properly regarded as such, the reliefs which the plaintiffs have obtained therein are pertinent to the allegations that were made in the suit. There was no want of jurisdiction in the Courts as far as I have been able to see, in having treated the suit as one of the Mature referred to above and the decree passed therein need not, therefore, be touched.

4. An objection has been raised on behalf of the appellants to the effect that if it is regarded as a suit for declaration of title to the menoy the observations and findings at which the Courts below have arrived may in any future proceeding that may arise between the parties be regarded as having finally determined the question of title to the land as between the parties. This objection is a grave one and needs serious consideration. I have, therefore, carefully examined the findings at which the learned S Subordinate Judge has arrived and I am clearly of opinion that although the learned “Subordinate Judge incidentally went into the question of title as regards the land he has made it clear in his; judgment that he was not deciding any question of title be the land itself and he has expressly stated in several passages in his judgment that the suit was not one for declaration of title to the land and towards the end of his judgment he has also said that the declaration with regard to the money was made by him on a determination of the question as to who was in possession of the land by receiving rent from the second party defendants. The findings and observations in the judgment of the learned Subordinate Judge, therefore, cannot by any stretch of imagination operate as res judicata on the question of title as between the parties in any future litigation.

5. The appeal, therefore, in my opinion, fails and must be dismissed. There is no appearance on behalf of the respondents and there will be no order as to costs.

Graham, J.

6. I agree.

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