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Judgment
P.N. Mookerjee, J.—This appeal arises out of a simple suit for rent. The suit has been decreed by both the courts below, and the Defendant is the Appellant before me.
The defence was that the suit tenancy had no existence but that there was a bigger tenancy of which the Defendant was a co-sharer. The Plaintiff''s case was that this bigger tenancy had been subdivided according to law and, as a result of this subdivision and subsequent events, the suit tenancy came into existence between the parties.
In proof of the plea of subdivision of the original tenancy, the Plaintiff led evidence, oral and documentary. The documentary evidence epmprised inter alia, Ex. 6, consisting of the application for subdivision by the tenants and the sanction, recorded thereon on the landlord''s behalf. The courts below, as I have already said, accepted the Plaintiff''s case and granted him a decree for rent as claimed in the plaint.
Mr. Sen Gupta, appearing on behalf of the Plaintiff-Respondent, raised a preliminary objection to the maintainability of this second appeal. The objection was taken u/s 153 of the Bengal Tenancy Act.
Admittedly, the value of the present rent suit was much less than Rs. 100. It was thus much below the statutory minimum appealable value for second appeals under the said section. On behalf of the Defendant-Appellant, however, an attempt was made to bring the case within the exceptions mentioned in the proviso to the section.
The first exception relates to a question of title to land or "some interest in land as between parties having conflicting "claims thereto". This obviously has no application as there is no question of conflicting claims of title to or interest in the land in suit between the Plaintiff and the Defendant who are the parties to this suit.
The second exception covers a case involving "a question of a "right to enhance or vary the rent of a tenant". This also has obviously no application to the present case. There is no question here of any enhancement or variation of rent or of any right to do the same.
The third exception relates to "a question of the amount of "rent annually payable by tenant." In my opinion, this exception also has no application to the present case. There was no dispute between the parties as to the amount of rent payable for the tenancy in suit. The existence of the tenancy itself was in dispute. The sub-division of the original tenancy was denied its validity was questioned and the controversy really centered round the question as to whether the original bigger tenancy was in existence or a new tenancy in the shape of the separate smaller tenancy, now in suit, had been created between the parties. The substance of the defence was that there was no tenancy as alleged in the plaint. In other words, the real question was whether there was relationship of landlord and tenant between the parties to the present suit in respect of the suit tenancy. There was, strictly speaking, no dispute as to the amount or rate of rent annually payable for the suit tenancy, and, in the absence of such a dispute, no question as to "the amount of rent annually "payable by a tenant" can strictly arise for decision or can be said to have been decided within the meaning of the third exception to Section 153 of the Bengal Tenancy Act. Accordingly, the third exception also cannot be attracted to this case.
Clearly, therefore, this appeal must be governed by the main part of Section 153 and would not come within the exceptions, mentioned in the proviso to that section. And as, admittedly, the amount, claimed in the suit, was below Rs. 100 no second appeal is maintainable in law. The preliminary objection must, therefore, succeed and this appeal must fail on that ground.
It is only necessary to add that the view which I have taken above is amply supported by the Bench decision of this Court, in Kumarish Chandra Mukhopadhya v. Ram Taran Ghosh (1927) 31. C.W.N. 436, which is binding upon me and which apparently over-ruled the contrary view of Mitra, J. in Nabi Shaik v. Jogendro Nath Bhadro Unreported decision in S.A. No. 815 of 1901 decided by Mitra, J. on June 25, 1903. The Bench decision in Mukunda Lal Roy v. Sm. Bhaba Sundari Debya (1918) 471. C. 922 looks even more extreme as, there, in specific, apparently, of the finding that, for the same land, the parties were alleging different rents, this Court appears to have held that the real question was whether there was relationship of landlord and tenant between the parties and that, accordingly, the case did not fall within the proviso or the exceptions to the main part of Section 153 of the Bengal Tenancy Act.
Even on the merits, I am not satisfied that the Appellant has any case. The courts below have concurrently found that the application for subdivision of the original tenancy was made by her along with the other tenants of that tenancy. The landlord''s consent in writing is also to be found in Ex. 6. The learned advocate for the Appellant however, contends that Ex. 6 was really a new lease in respect of the suit tenancy, and that, accordingly, it required registration under the Indian Registration Act, either u/s 17(1)(d) or Section 17(1)(b).
I am unable to accept, either of these two contentions. Exhibit 6 evidences at the most, the landlord''s consent to the subdivision, whereby the Appellant became entitled to hold 5 cottars out of the original tenancy at the rental of 0-ll-9p. per annum. It appears, however, from the materials on record that the Appellant is in possession of a specific portion, comprising 5 cottahs of the original tenancy, and the present suit has been brought in respect of that specific portion. The circumstances of this case clearly indicate that this tenancy with regard to the said specific portion of five cottahs came into existence not merely by or under Ex. 6 but by reason also of events, following the same. It is not possible, therefore, to hold that Ex. 6 contains or embodies the lease in respect of this new tenancy for which the present suit has been brought. There is also no evidence on record showing that the Defendants'' undefined five cottahs, as mentioned in Ex. 6, are valued at Rs. 100 or more. I was asked to assume that, having regard to its area (five cottahs) and the situation of the entire land the said five cottdas would not be less than the said figure of Rs. 100 in value, but a court is not entitled to make any assumption or speculation and cannot make a finding on valuation, unless there be supporting evidence on record. Clearly, therefore, on the present materials, I am not permitted to say that the said area of five cottahs is valued at Rs. 100 or more; and, accordingly, Section 17(1)(b) of the Indian Registration Act also can have no application, even assuming that it would be otherwise applicable, although, for reasons, substantially similar to those, already given in connection with the other Clause (d) of the section, this Clause (b) also appears to be prima facie inapplicable. In hold, therefore, that Ex. 6 was not inadmissible in law, and the courts below committed no error in relying upon the same.
Once Ex. 6 is taken into consideration along with the other evidence on record, the position becomes absolutely clear that the suit tenancy validly came into existence and that the Appellant is liable to pay the rent of 0-ll-9p. per annum for the same. The landlord''s suit for rent has, therefore, been rightly decreed against the Appellant, and'' this appeal must fail.
In the above view of the-matter, I dismiss this appeal, but, in the circumstances of this case, I would not make any order for costs in this Court.