These ten appeals are preferred by the tenant Defendants against decrees which have been made against them respectively in ten suits. The suits were tried together and disposed of by one judgment in the first Court and also in the Court of Appeal. It appears that two brothers Kadu and Udu Mia owned in equal shares some lands appertaining to a taluk. In execution of a decree against them Kadu's share in all the lands and Udu's share in some of the lands were sold and purchased by one Bhola Nath, who in Assar 1301 sold to the first four Plaintiffs in all the suits half of the land so purchased as well as all the arrears of rent due to him for the year 1300. Those Plaintiffs then sold to certain persons who did not join with them in any of the suits, and who are on that ground made pro formâ Defendants, half of the land which they had purchased and also half of the arrears for 1300.
The five suits, which have given rise to appeals, Nos. 1230, 1232, 1233, 1234 and 1193, were brought by the Plaintiffs (the purchasers from Bhola Nath) to recover from the Defendants in each suit the entire rent due for the year 1300; the persons to whom they had sold a portion of those arrears being, as already stated, made pro formâ Defendants. The other five suits which have given rise to appeals, Nos. 1227, 1228, 1229, 1231 and 1235, were similarly brought against the same Defendants for the years 1301 and 1302, the only difference being that in these suits the heirs of Bhola Nath who still owned half the land purchased at the execution sale referred to above were joined as Plaintiffs. The Plaintiffs have obtained in each case a decree for a portion of the rent claimed, the Courts having found that the Defendants were tenants of the land which formerly belonged to Kadu and Udu Mia and had passed to the Plaintiffs in the way described above, and that arrears were due to the extent decreed.
Three points have been pressed before us, first, that the Court of the Munsif had no jurisdiction to entertain the suits for the arrears of 1300, as the suits were not suits for the recovery of rent but for debts assigned to the Plaintiffs, who were not the landlords of the Defendants at the time when the rent became due, and that the Small Cause Court cannot alone have jurisdiction to entertain them; second, that the suits for the rent of 1301 and 1302 were barred by the provisions of sec. 43 of the Civil Procedure Code, as the rent claimed in them was due when the suits for the rent of 1300 were instituted and should have been included in them. It appears that there was an interval of six or seven days between the institution of the two batches of suits; third, that the Courts ought to have hold that the rent decreed was not the rent which would have been payable to Kadu and Udu alone but to all the members of the family to which they belonged, and that as those members were not made parties or the shares of Kadu and Udu determined, all the suits must fail on this ground. These points were taken and overruled in both the lower Courts.
The suit for the arrears of 1300 are certainly within the pecuniary jurisdiction of a Court of Small Causes, but they are not, in our opinion, within the jurisdiction of that Court as regards the subject-matter of them. Sec. 15 of Act IX of 1887 excludes from the jurisdiction of a Court of Small Causes the suits specified in Schedule II of the Act, and one of those suits described in Art. 8 is ‘a suit for the recovery of rent other than house-rent.’ What was assigned in this case was the right to receive from the tenant the rent then due to the assignor, and it seems to us that the suit brought by the assignee against the tenant is a suit to recover the rent within the meaning of article 8. The money was due as rent at the time of the assignment, and the assignment did not deprive it of that character so far at all events as the tenant was concerned. If it were not so and rent which had become due ceased, when assigned, to be rent, it would follow that an assignment, to which the tenant was not a party, would have the effect of changing the tribunal to which the contracting parties subjected themselves at the time of the contract with reference to the subject-matter of it, and depriving the tenant of rights to which he was entitled, for example, the right of an appeal, the right of making a deposit, and possibly other rights. It would not, we consider, be right to construe article 8 as limited to suits brought by the landlord and so as to exclude suits brought by a person who represented the landlord whether the representation was by assignment or otherwise.
In Shama Sundarec Dosee v. Brindabun Chunder Mojoomddr Peacock, C.J, and Kemp, J., held that a suit by an assignee to recover rent was a suit cognizable by the Revenue Court under cl. 4, sec. 23, Act X 1859, which enacted that suits for arrears of rent due on account of land should be brought in the Revenue Court and in no other Court. This was followed in Lall Mohun Singh v. Troyluckho Nath Ghose and Reedoy Monee Burmonee v. Silbold. In Lalla Bugwan Sahoy v. Sungessur Chowdhry, Couch, C.J, and Glover, J., no doubt said that an arrear of rent purchased by the Plaintiff was a debt which must be sued for in the Civil Court, and that the suit to recover it was not a suit for rent due to the Plaintiff, but there was no question there as to the jurisdiction of a Small Cause Court to entertain such a suit. It may be that the Plaintiffs in this case could not recover the money claimed under the special provisions of the Tenancy Act in force in the Sylhet District, they not being the persons to whom the rent as such was payable; but this is not the question which arises here. The Civil Court in the exercise of their ordinary powers have jurisdiction to entertain all suits for rent which are not specially excluded by the provisions of the Small Cause Courts Act, and the question is whether these cases are so excluded. That question must, we think, be answered in the negative.
The decision of the lower Courts on the second point is, we think, right. The Plaintiffs are not the same in the two sets of suits, and the heirs of Bhola Nath had no claim for the arrears of 1300.
The third point is not one upon which we can interfere in second appeal. It is a question of fact which has been dealt with and decided by the lower Courts both of which have found that the rent claimed was the rent which would have been payable to Kadu and Udu on account of the land sold. The Subordinate Judge may not have been quite right in saying that there could be no such thing as a joint Mahomedan family with a managing member although he would have been right in saying that the incidents and presumptions of Hindu law would not attach to it. This is not however the only ground of his decision, and he agrees with the Muusif in the facts as found by him.
The appeal must be dismissed with costs.
S.C.S
Appeal dismissed.