1. This appeal ariset out of rent suit which was heard by a Munsif who was specially empowered under Section 153 of the Ben. Ten. Act. The plaintiffs claimed 16 annas rent from the defendants on the allegation that they had inherited a 6 annas 8 gundas share in the malki right for their mother and 9 annas 12 gundas ijara right from their father. The contesting defendants admitted the plaintiffs' malki right to the extent of 6 annas 8 gundas, but denied the existence of any ijara right. The Munsif found that the plaintiffs established their ijara right as well as the admitted malki right and gave the plaintiffs a decree for the rent claimed. On appeal the learned District Judge held that no appeal lay, citing as an authority, the case of Baidya Nath Bahara v. Dhon Krishna Sirkar (1). Against this decision of the lower appellate Court this appeal has been preferred and the appellants have also obtained a Rule in case it should be held that no second appeal lay to this Court. As regards the question whether an appeal lay to the lower appellate Court, it is urged that the Munsif's decision decided the question of the amount annually payable by the tenant. It is contended that the point is covered by the decision of the Full Bench in the case of Narain Mahtan v. Manofi Pattuk (2). In that case the point actually decided by the Full Bench was in the following terms that the words,
“amount of rent annually payable by a tenant occurring in Section 158(a) of the Ben. Ten. Act., include the case of rent payable by a tenant to one of his cosharer-landlords who collects his share of the rent separately.”
2. It seems to me that the decision in that case cannot be made applicable to the facts of the present case.
3. The plaintiffs were not, either on their pleadings or on the findings of the Court below, cosharer landlords who were collecting their share of the rent separately. The issue on which the parties went on trial was framed in the following terms: “Was there any ijara of a 9 annas 12 gundas share in favour of Ram Narain Sarkar and have the plaintiffs inherited the same? Are the defendants liable to pay 16 annas rent to the plaintiffs?”
4. That is to say, the issue between the parties was not one as to the amount of rent but as to the plaintiff's title; and as the person whose title was set up was not a party to the suit, there could be no decision of a question of title as between parties having conflicting claims thereto. As, in the case relied on by the lower appellate Court, if the defendant was liable to pay the whole rent to the plaintiff, there was no dispute as to the amount of rent payable. The only issue in dispute was, whether the relationship of landlord and tenant existed between the parties with regard to the entire holding and that was the only issue decided. The view I take, that the Full Bench reference above cited is not applicable to a case of this sort, was also taken by a single Judge of this Court in the case of Fakeer Mondul Gain v. Arshad Molla (3) of which a short Dote will be found in 10 C.W.N 280. I therefore hold that the decision of the lower appellate Court that no appeal lay was right, and dismiss the appeal with costs. The Rule is discharged but without costs.
V.B/R.K
5. Rule discharged.