JUDGMENT
Mitter, J.
1. This appeal arises out of a suit by the respondent for recovery of the balance of Road and Public Works Cesses from the appellant payable for four years viz., 1326 to 1329 B.S., with damages at 25 per cent.
2. The defendant in this suit, now appellant, is the patnidar under the plaintiff, now respondent, who is the zemindar of the mahal in suit and the terms of the patni are to be found in a kabuliat to some of the terms of which referent will be made later.
3. The plaintiff alleges that out of the cesses payable by the defendant only a smaller sum has been realized and the plaintiff consequently sues for the excess cesses.
4. The defence of the defendant substantially was (i) that the plaintiff was realizing cesses at the legal rate without adverting to a clause in the kabuliat which runs to the following effect:
If there be any demand from the state on the zemindari for any new amount on account of rent or revenue payable to the king or if any order is passed, I shall abide by it and pay my rent along with it without any objection, (ii) that the plaintiff’s claim for recovery of cesses for the year 1926 was barred by limitation.
5. The Munsif granted a decree to the plaintiff for the excess cess. An appeal was taken by the defendant to the Court of the Subordinate Judge of Murshidabad who affirmed the decision of the Munsif.
6. A second appeal has been taken to this Court by the defendant and three points have been raised before us by the learned advocate for the appellant. It is argued in the first place that the covenant in the kabuliat that the defendant would pay “Bajaswa” would not include the excess cess claimed i.e., the cess in excess of the legal rate. It is contended in the second place that the excess cess claimed does not fall within the definition of rent as given in the Bengal Tenancy Act for under Section 3, Clause 5 of the Act
rent includes also money recoverable under any enactment for the time being in force as if it was rent
and as the excess cess was recoverable not under the Cess Act but under the covenant in the kabuliat the excess cess could not be regarded as rent within the meaning of the Bengal Tenancy &ct and that the suit for excess cess was not a suit to which the provisions of Article 2, Schedule 3, Clause (iii)(b), Bengal Tenancy Act, would apply and consequently, the claim for 1326 B.S. is barred by limitation. It is contended in the third place that in any view the plaintiff is not entitled to damage at 25 per cent on the excess cess having regard to the provision of Section 68, Clause 2, Bengal Tenancy Act, which applies only to a suit for rent.
7. Basing his argument on the ground taken by the appellant that the sum claimed in the suit cannot be regarded as rent, the learned vakil or the respondent has taken a preliminary objection to the hearing of this appeal. He contends that according to the appellant’s argument the present suit would fee a suit not for rent but for money and as the suit is valued at less than Rs. 500 there would be no second appeal to this Court by reason of Section 102, Civil P.C. The appellant is in the horns of a dilemma for if his argument is accepted that the present suit is not a suit for rent then he has no right of second appeal. If on the other hand his argument is not accepted and the suit is regarded as a suit for rent then there is no substance in any of the three grounds taken. The learned advocate for the appellant is prepared to accept the position that this is a suit for money and not for rent; consequently he is met by the preliminary objection which must prevail and the appeal is dismissal with costs.
8. It is next argued in reply that this petition of appeal should be treated as a petition for revision and this Court should interfere under Section 115, Civil P.C. With reference to the second and third grounds raised on behalf of the appellant it is said that the lower appellate Court has applied the law to a case to which it does not apply and has thus exercised his jurisdiction with material irregularity. Reliance has been placed in this connexion on the decisions of this Court in Brajabala v. Gurudas [1906] 33 Cal. 487 and Mohini Mohan v. Ram Das . All that these cases lay down is that in a proper case where there has been an error of jurisdiction the High Court may treat a petition of appeal as a petition for revision and interfere under Section 115 of the Code. But we do not think that Section 115 applies in the present case for in deciding the three points raised by the appellant against him the lower appellate Court has merely arrived at conclusions of law contrary to the contention of the appellant. It has been observed by the Judicial Committee of the Privy Council in the recent case of Bala Krishna v. Vasudeva A.I.R. 1917 P.C. 71, that Section 115 applies to jurisdiction alone, the
irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved.
9. I think, therefore, that this is not a case which calls for our interference under Section 115.
S.A. No. 42 of 1926.
10. With regard to this appeal which arises out of a suit between the same-parties as in appeal No. 1805 of 1925-which I have just dealt with, it has been frankly admitted by the learned advocate for the appellant that the case is governed. by a previous decision of the High Court dated 1st June 1922 which has been, marked as Ex. 3 in the suit and that that decision is against him.
11. I think that the decision of this Court referred to concludes this second appeal, which must be dismissed with costs.
Rankin, C.J.
12. I agree.
