Asan Ali v. Sarada Charan Kastagir — 1922 DIGILAW 148 (CAL)

JUDGMENT 1. This appeal arises out of a suit for a declaration that the land of Sch. No. 2 of the plaint appertains to the land of Sch. No. 1, and is an accretion to a taluk which the plaintiff holds under the defendant No. 13, and for recovery of possession of the same from defendants Nos. 1 to 12 who dispossessed him under a lease from defendant No. 14, the Secretary of State. There was an alternative prayer that if the defendants Nos. 1 to 12 are found to have title under the Government, then proportionate abatement of rent might be Allowed as against defendant No. 13 for the Sch. 2 lands which he claims as on accretion. He also claimed a refund of certain rent realized in execution of a decree for rent obtained by the defendant No. 13 against him. 2. It appears that one Mohabat Ali held 19 kanis of land at a rent of Rs. 39 As. 13 under the defendant No. 13. The defendant No. 13 on the allegation that there was an accretion of 14 kanis, brought a suit for enhancement of rent and the rent was enhanced to Rs. 65 As. 13 in respect of 33 kanis of land including the accretion. In execution of the decree for rent, the taluk consisting of 33 kanis and odd was sold and purchased by the present plaintiff on the 12th October, 1903. Subsequently in 1913 the defendant No. 13 brought another suit against the plaintiff in respect of Sch. 1 lands alleging that there was a further accretion of 7 kanis. The defence of the plaintiff was that the accreted land belonged to the Secretary of State who had settled the land with certain persons through whom the plaintiff was previously in possession and who having attorney to the Secretary of State had refused to pay him (the plaintiff) rent, and that in fact the land was not an accretion to his taluk. 3. 3. The Court held that the land was an accretion that the plaintiff had failed to prove that the Secretary of State was the owner of the land, that as the defendant No. 13 had done nothing to dispossess him of the land, the plaintiff the defendant in that suit) was bound to pay rent in respect of the land so accreted and that if the persons who held the land under him refused to pay him rent, he had his remedy elsewhere. This was in 1913. 4. The present suit was thereupon instituted by the plaintiff for declaration of title and recovery of possession, and also for mesne profits against defendants Nos. 1 to 12 as stated above. Upon the objection of the defendants Nos. 1 to 12, the Secretary of State was made a party (defendant No. 14). 5. The Courts below have come to the conclusion that the land is not an accretion but a chur thrown out in the river, the river being fordable between the plaintiffs land and the chur and that it belongs to Government having regard to the 3rd sub section of S. 4 of Regulation XI of 1825. 6. In that view, the suit for recovery of possession and declaration of title as against defendants Nos. 1 to 12 was dismissed, but the rent payable to the defendant No. 13 namely Rs. 79 As. 13 was reduced to Rs. 65 As. 13. 7. The plaintiff has appealed to this Court and it is contended on his behalf that there should be an abatement of rent not only in respect of 7 kanis which is a further additional accretion, but also in respect pi 14 kanis and odd which was an accretion at the time when Mobabbat Ali held the tenure. Before dealing with the questions we will consider two questions of law raised on behalf of the respondents which were decided by the Court below in favour of the plaintiff. 8. The first is that the question of title as between the defendants Nos. 13 and 14 cannot be gone into in this suit as it is really an inter-pleader suit and that the plaintiff cannot compel defendants Nos. 13 and 14 to prove their respective titles. 9. 8. The first is that the question of title as between the defendants Nos. 13 and 14 cannot be gone into in this suit as it is really an inter-pleader suit and that the plaintiff cannot compel defendants Nos. 13 and 14 to prove their respective titles. 9. An inter-pleader suit is defined in S. 88 of the CPC thus: "When two or more persons claim adversely to one another the same debt, sum of money on other property, movable or immovable, from another person who claims no interest therein other than for charges of costs, and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of inter-pleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself." And O. 35, R. 5, lays down that nothing in this order shall be deemed to enable agents to sue their principals or tenants to sue their landlords for the purpose of compelling them to inter-plead with any persons other than persons making claim through such principals or landlords. 10. We do not think, however, that this is an inter-pleader suit. In the first place, the defendants Nos. 13 and 14 do not claim adversely to one another the property in suit from the plaintiff, nor is the plaintiff ready to pay or deliver the property to defendant No. 14. The plaintiff does not admit the title of defendant No. 14, nor does the defendant No, 14, claim the property from the plaintiff as he the Secretary of State has his own tenant and the plaintiff is not ready either to pay rent to the Secretary of State or deliver the property to him. 11. The case of Kylash Chandra Dutt v. Goluk Chandra Poddar (1898) 2 CWN 61 relied upon is quite distinguishable. There it was held that a tenant has no right to bring a suit to have it determined which of two defendants, both of whom claimed rent from him was his landlord. 12. In the case of Nanji Koer v. Unatul Patul (1912) 13 C.L.J 653 = 13 I.C. 40, A brought a suit against B for rent. There it was held that a tenant has no right to bring a suit to have it determined which of two defendants, both of whom claimed rent from him was his landlord. 12. In the case of Nanji Koer v. Unatul Patul (1912) 13 C.L.J 653 = 13 I.C. 40, A brought a suit against B for rent. The defence was that she held the land as tenant of C.B's defence was investigated and overruled on the merits and a decree was passed in favour of A. B. then brought a suit for declaration that C and not A was her landlord. It was held that the suit being an interpleaded suit was not maintainable. 13. In the case of Suhumari Gupta v. Bharat Mondal (1914) 20 C.L.J. 148 = 26 I.C. 980, it was held that where it is conceded that either A or B is the land lord of C and A institutes a suit to recover rent from C, to which B is joined as a party, if it is agreed between A and B that A is entitled to the rent, it is not open to C to invite the Court to determine whether A or B is entitled to recover rent from him. 14. We think therefore that these cases dot not apply to the present. In the presents case, as stated already, the defendant No. 14 does not claim any rent from the plaintiff, nor recognize the plaintiff as having any interest whatsoever in the land. We do not think that in these circumstances the suit was in the nature of an interpleader suit. 15. The question does not come under S. 149 of the Bengal Tenancy Act, because here the defendant No. 14 has got his own tenants and the plaintiff does not say that the rent is not due to defendant No. 13. 16. The next question is whether the decision in the rent suit operates as res judicata. 17. The learned pleader for the appellant contends that the suit is barred by reason of the decision in the suit of 1913 referred to above and the question of title was in fact decided in that case. 18. 16. The next question is whether the decision in the rent suit operates as res judicata. 17. The learned pleader for the appellant contends that the suit is barred by reason of the decision in the suit of 1913 referred to above and the question of title was in fact decided in that case. 18. Whether the question of title now raised can be said to have been substantially and directly in issue in the rent suit, it is unnecessary to determine, because it appears that suit was decided by a Munsif who had jurisdiction to try suits up to the value of Rs. 1,000 only. The present suit was laid at Rs. 1,100 and was tried by a Munsif who had jurisdiction to try suits up to the value of Rs. 2.000. The Munsif who tried the previous rent suit therefore had no jurisdiction to try the present suit. 19. It is urged on behalf of the respondent that the value of the land was stated to be Rs. 700 only and the claim was laid at Rs. 1,100 by the addition of a claim for mesne profits for Rs, 400 and that the plaintiff cannot by joining the claim for mesne profits avoid the plea of res judicata; and reliance is placed upon the case of Bhagwanbuthi Chowdhurani v. A.H. Forbes (1901) 28 Cal. 78 = 5 C.W.N. 483. But that case is distinguishable. There the first suit was for rent and cesses for a particular period and the second suit was also for rent and cesses but for a longer period. In the present case the previous suit was one for rent and the present suit is for declaration of title to, and recovery of possession of property. According to the defendant No. 13, the property really is an accretion and belongs to him. The plaintiff therefore was certainly justified in joining a claim for mesne profits in his suit for recovery of possession of the land as he was entitled to mesne profits if he succeeded. There is no reason why he should give up the claim for mesne profits, and the defendant No. 13 cannot complain that the plaintiff's suit for recovery of possession and mesne profits is not a bona fide suit because, according to his own case, the plaintiff had good title to recover possession. There is no reason why he should give up the claim for mesne profits, and the defendant No. 13 cannot complain that the plaintiff's suit for recovery of possession and mesne profits is not a bona fide suit because, according to his own case, the plaintiff had good title to recover possession. He therefore had good title to recover mesne profits also. The decision in the previous suit therefore does not operate as res judicata. We now come to the question raised on behalf of the appellant. From the judgment of the Court of first instance, it seems as if the Munsif found that the entire lands of Sch. 2 were lands belonging to Government, and it is contended on behalf of the appellant that the defendant No. 13 having appealed in respect of Sch. 2 lands and that the appeal having been dismissed, he cannot claim any portion of Sch. 2 lands. The respondent, however, says that the Secretary of State in his written statement did not claim the entire lands of Sch. 2. 20. The Court of first instance appears to have found that the entire lands of Sch. 2 are not, accretions and were never held by the defendants 1 to 12 under the plaintiff. The lower Appellate Court however has not dealt with the question in its judgment. 21. In these circumstances, the case is sent back to the lower Appellate Court. That Court will determine the area of the land in respect of which it found that the Plaintiff and the defendant No. 13 had no title and the Secretary of State had title and will allow proportionate abatement of rent to the plaintiff accordingly. Costs will abide the result. 22. S.A. No. 1625 of 1919.This appeal arises out of a suit by the landlord to recover arrears of rent at the enhanced rate. The rent which he is entitled to get, depends upon the result of the decision of the first suit which we have just remanded. 23. This case, therefore, is also remanded to the lower Appellate Court and will be governed by the decision of the first suit. Costs to abide the result.