P (PLP)

(d) Civil Procedure Code (V of 1908)

S. 86 (5)‑Suit under S. 149, (3), Bengal Tenancy Act against Ruling Chief Consent of Crown representative not necessary. Where the Maharaja is a superior landlord in respect of the lauds in suit and the plaintiff is a tenant under the Maharaja to respect of the same land, subsection (5) applies to tire case. Any suit brought by a person against another mast be with regard to conflicting or rival claims. Subsection (5) therefore contem plates a rival claim to he put forward by the ruling chief but the only limitation is that the person who is the plaintiff in the suit must be a tenant of the ruling chief and the suit must relate to the lands which he holds under him. In the circumstances of the case section 86 of the Code is no bar to the suit. Amarendra Mohan Mitra, and Dwijendra Narain Ghose, for Appellant. Upendra Kumar Roy, for Deputy Registrar, for Respondents Nos. 1 (4), 1 (5) and 17 (3). The Maharaja of Tippera who is the appellant in this case filed a Rent Suit No. 347, of 1941 for recovery of a sum of Rs. 29.12‑3 against Respondents Nos. 2 to 17, who deposited the rent in Court on 17th June 1941 and pleaded under section 149(1). Bengal Tenancy Act, that the amount was not due to the Maharaj but to a third person, who is the plaintiff in the present suit. This suit was instituted on 27th October 1941, after receipt of notice on 22nd June, 1941, by the plaintiff of the deposit provided for in subsection (3) of section 1.49, Bengal Tenahcy Act. The plaintiff's case was that he was the owner of a dar taluq in respect of the lands for which the rent was deposited by the tenants who were the defendants in the Maharaja's Rent Suit No. 347 of 1941. and that he was entitled to receive this rent. The Maharaja who was defendant No. 1 in this suit denied the right of the plaintiff to receive this rent and contended that he having purchased at a rent sale the :"Talaq Shekh Bakhtar" to which the land in suit appertain and which was recorded in Khatian No, 51, was entitled to receive the rent direct from the tenants and that there was no dar taluq under the taluq he had purchased, The fact is that originally there were two taluqs tinder the Maharaja named "Taluq Shekh Bakhtar" and "Taluq Shekh 13akhtar Nasir Muhammad", both bearing the same jama of anna5 .4 and 2 pies per year and bearing Nos. 162 and 164. From the sale certificate Exhibit A relied on by the Maharaja, it appears that Maharaja purchased " Taluq Shekh 13akhtar " on 20th November 1931. ‑The plaintiff, on the other land, relied upon three documents Exhibits 1 to 3 one of which Exhibit 2 is the Kabuliyat of the year 1321 B. S, by which a dar taluq was created in favour of one Muhammad Daem Choudliury and Fazlur Rahman whose, interest the plaintiff acquired by the other documents. There is to statement in Exhibit 2 that there was no demarcation of the lands which were in actual possession of the tenants and it was not known which land appertains to which taluq and there was a reference to the settlement proceedings which were going on at the time. The whole question for decision before the Court was whether the dar taluq appertained to the taluq which was purchased by the Maharaja by Exhibit A. The trial Court found in favour of the plaintiff and held that defendant No. 1 the Maharaja, was the landlord of the plaintiff" in respect of the dar taluq and as superior landlord was entitled to realise rent from the plaintiff but not from the under tenants direct, and, decreed the suit of the plaintiff, Against the judgment and decree of the Munsif, an appeal was taken by defendant No. I to the District judge who after discussing the evidence, found that the plaintiff did really hold under Khatian No. 51 dar taluq and that defendant No. I purchased the taluq in that khatian and that, therefore, rent was payable for the land in suit by the tenants, respondents Nos. 2 to 17, to the plaintiff and by the plaintiff to the Maharaja defendant No 1. On these 'findings the decision of the trial Court was affirmed by the District judge and the Maharajas appeal was dismissed. The Maharaja defendant No. 1, has now come up an a second appeal to this Court. A preliminary objection was taken to the maintainability of this appeal by the appearing respondents. It was urged that a suit contemplated by section 149 (3), Bengal Tenancy Act is essentially a suit for rent and as it was tried by a Munsif empowered under section 153, Bengal Tenancy Act, an appeal is barred by that section. It was also urged that the suit being a suit relating only to a sum of money, was cognizable by a court of Small Causes and, therefore, the second appeal was barred under section 102. Civil Procedure Code. As a regards the, alleged bar under section 153, Bengal Tenancy Act. I am of opinion that the suit is really in the nature of a rent suit the decision, of which rests on a decision of the question of title to the land. In appeal therefore is not barred under that section. With regard to the second objection of a bar under section 102, a suit contemplated by section 149, Bengal Tenancy Act also bears the character of a suit for a declaratory decree The plaintiff sues for a declaration that he is entitled to the rent deposited in Court and claims the money as a consequential relief. To my mind suit under that section is not cognizable by a Small Cause Court under Arts. (8) and (19), Schedule II. Provincial Small Cause Courts, Act. Section 102, Civil Procedure Code, is therefore, no bar to a second appeal in a suit of this nature. The third objection taken was that as the relief contemplated by section 149 (3) was only an order in the nature of an injunction, no decree was contemplated to be passed and therefore, there was no right of appeal. I may at once say that what is contemplated by section 149 (3) is a regular suit and the final adjudication order in a suit ends in a decree and so there is a right of appeal. Sub section (3) also provides for an order in the nature of an injunction restraining payment out of the money pending the suit. There is no provision for any appeal against this order. I am not unmindful of the observations made by Sir Lawrence Jenkin, C. J., on the question of appeal in a case of this nature made in Tirthabasi Singh v. Purna Chindra Nag. 16 C W N 558, on which case however, the respondent did not rely. In the case before me the question of title as between two rival landlords was decided and the suit ended in a decree. I therefore hold as was held by M. C. Ghosh J. in the case of Gyauoda Charan Banerji v. Dharani Mohan Roy 62 C L J 287 that an appeal lies in such a case. There is thus no substance in the preliminary objection taken, which is overruled. The main point urged in support of this appeal was that the Maharaja of Tipperah being a Ruling Prince, could not be sued without the consent of the Crown Representative of the Centrals Government as required by section 86, Civil Procedure Code. It is true that a Ruling Chef cannot be sued without the consent as provided by section 86 of the Code, but there are certain exceptions to it, one of which is in subsection (5) which runs thus: A Person may, as a tenant of immovable property, sire, without such a consent as is mentioned in the section a Prince Chief, ambassador or envoy from whom he holds or claims to hold the property." It was argued that this exception does not apply to the present case as the plaintiff in the present suit is claiming as a rival landlord against the Maharaja, and the suit is not brought by the plaintiff in his capacity as a tenant of the, Maharaja and in relation to the tenancy he holds under the Maharaja. On the findings of fact rived at by both the Courts below, namely, that the Maharaja is a superior landlord in respect of the lands in suit and that the plaintiff is a tenant under the Maharaja in respect of the same land, I hold that the subsection (5) does apply to the present case Any suit brought by a person against another must be with regard to conflicting or rival claims. Subsection (5), therefore, contem plates rival claim to be put forward the Ruling Chief but the only limitation is that the person who is the plaintiff' in the suit: must be a tenant of the Ruling Chief and the suit must relate to the lands which he holds under him. In view of the findings of the two Courts below both these conditions have been fulfilled in the case. I, therefore, hold that in the circumstances of the case section 86 of the Code is no bar, to the present suit. It was next argued that the lower Appellate Court has proceeded on a wrong assumption. that the Maharaja admitted the existence of the dar taluq under one or Ether of the 'two taluqs named after Sheikh Bakhtar at of that no admission is to be‑found from the rec6d of the case. The appellant has not sworn any affidavit to show that to such admission of fact was made by his pleader during the argument of the appeal before the lower Appellate Court. In the a sence of such affidavit. I am unable to hold that the lower Appellate Court had no ground to observe that the dar taluq "admittedly" existed under one or other of the two taluqs. It was next urged that the lower Appellate Court. was wrong in not considering the presumption of the correctness of the record of rights which was finally published in 1917, about three years after the date of the Kabuliyat Exhibit 2 in which dar taluq was not mentioned. It is true that the lower Appellate Court does not mention the word presumption in the judgment, but it appears that it did take into consideration the settlement khatian published in 1917:‑ From the fact that the dar taluq was created at a time when the settlement proceedings were already going on, and, we do not know at what state they were then, and from the fact that the settlement proceedings are mentioned in the Ka6uliyat itself, and in, view of the other fact and circumstances of the case, it cannot be said that the finding of the lower Appellate Court is vitiated by any illegality. It was also urged that the Courts below were wrong in misconstruing the sale certificate Exhibit A. It does not appear that any terms of the sale: certificates were mis construed. The only question that was before the 'Court to decide was, whether the lands in suit were lands covered by the sale certificate or not and both the Courts held that they were so covered. The last point urged was that the suit having been brought more than three months after receipt of notice under section 149 (3), Bengal Tenancy Act was barred by limitation. As regards this point, I may at once say' that the period of three months provided in sections 149 (3) is not intended to provide a special limitation for a suit contemplated by that subsection. A period of three months is the period within which the plaintiff, if, he wants the money to be detained till tree decision of the suit has to obtain an order to that effect. It does not provide a special time limit for the‑suit to be brought which will be governed by the ordinary law of limitation. So, this ground also fails. The result is that the appeal is dismissed. As the contest was any by the Deputy Registrar whose costs have already been paid make no order as to costs. Leave, to appeal under clause 15 of the Letters Patent is granted as prayed for by learned Advocate appearing for the appellant. Appeal dismissed K. M. A./A. H.