Bhai Chal Nasya vs Shaik Shamnuyasi Mahomed

Banerjee, J.—We think that these cases must go back to the lower Appellate Court for the decision of the proper issue arising in them. Having regard to the pleadings, the plaintiffs claiming a certain rent as payable in respect of certain lands mentioned in the plaint, and the defendants denying the occupation of these lands at the rents alleged by the plaintiffs and admitting that they held other lands at different rents, the Court of first instance was, we think quite right in holding that the point for decision was whether the defendants held the lands set forth in the plaints under the plaintiffs vendor at the rent specified; and the lower Appellate Court was wrong in holding that the issue set down by the first Court was not the proper issue to be tried. The lower Appellate Court observes: "Here it was necessary to adjudicate whether the defendants held under the plaintiff''s vendor jamas set forth in the plaints, or whether Bhaichal Nasya held only one jama of Rupees 3, and Bala Nasya another of Rupees 5 annas 8." The lower Appellate Court seems to have overlooked the provisions of section 148, clause (b) of the Bengal Tenancy Act, which provides that "the plaint shall contain, in addition to the particulars specified in section 50 of the Code of Civil Procedure, a statement of the situation, designation, extent and boundaries of the land held by the tenant." It was necessary, therefore, for the lower Appellate Court to find whether the defendants held the lands mentioned in the plaints, and are liable to pay the rent claimed by the plaintiffs on account of these lands. The cases must, therefore, go back to the lower Appellate Court for final disposal after the trial of the issue framed by the Court of first instance.

Costs will abide the result.