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Civil Appeal No. 702 of 1960, decided on 10th May, 1961.

Provincial Small Causes Courts Act (IX of 1887), Ss. 25 & 27 Suit of the nature of Small Causes‑Whether appeal barred Test‑Whether trial Court was invested with Small Cause Suit powers‑[Indra Chandra Mukharjee v. Srish Chandra Bannerjee I L R 40 Cal. 537; Satyandra Nath Bisi and another v. Narendra Nath Sarker 43 C W N 947; Shamsuddin Pradhan v. Jasoda Kanta Sen and others 6 D L R 277; Mohini Mohan Roy v. Sankar Das Mohunta 39 C L J 532; and Majid Biswas and others v. Adiluddin Shaikh P L D 1960 Dacca 907 distinguished].

P. C. Nag for Petitioner.

D. C. Bhattacharjee with Z. H. Khan for the Opposite‑parties.

S. M. Mohsin All for the Deputy Registrar.

This Rule is directed against the judgment and order passed in the Money Appeal No. 64 of 1958 of the fourth Subordinate Judge's Court at Mymensingh, setting aside the decision of the learned Munsif in Money Suit No. 116 of 1957.

2. The plaintiff opposite‑party brought the suit for recovery of the price of Bagra crops Aush paddy grown in 1364 B. S. amounting to Rs. 75 only. According to the plaintiff, the land which was, 48 acra in area was purchased by him from one Kumud Chandra Rudra by a kabala dated 13‑5‑57. It was arranged that Kumud's share in the standing crops would be made over to the plaintiff but the defendant having failed to do so, the plaintiff was obliged to bring this suit.

3. Defendant No. 1 contested the suit denying the alle gation that was a mere Adhi Bargadar. His defence in substance was that he had a tenancy right and on payment of a fixed paddy rent he held that land as a tenant. The learned Munsif after consideration of the evidence on record held in favour of the contesting defendant and dismissed the suit. On an appeal preferred by the plaintiff, the learned Sub‑Judge allowed the appeal and decreed the suit in part for a sum of Rs. 50 only.

4. Mr. Nag appearing on behalf of the defendant peti tioner contends that the learned Subordinate Judge failed to consider various points. According to him, the suit as framed being in the nature of an S. C. C. suit, the learned Judge ought to have held that no appeal lay against the decision of the learned Munsif. His further contention is that the vendor of the plaintiff having transferred more than 10 bighas of land in contravention of the provision of the East Bengal Transfer of Agriculture Land Act XXXIII of 1951 the kabala dated 13‑5‑57 on the basis of which the plaintiff claimed his title, was void and as such the plaintiff was not entitled to get any relief. On merits his contention was that the learned Sub ordinate Judge acted with material irregularity in the exercise of his jurisdiction in throwing the onus on the defendant in regard to the question as to whether Exhs. D and D (1) certi fied copies of the index register of a T. lease, actually connected the suit land or not. In his submission the defendant having held the land for a pretty long time for about 50 years he ought to have been found as holding the land to the capacity of a tenant by virtue of various changed legislations during this course.

5. Mr. Bhattacharjee appearing on behalf of the contesting opposite‑party, however, contends that although the suit was in the nature of an S. C. C. Suit, yet being tried by ordinary Munsif's Court having no S. C. C. powers there was no bar in entertaining an appeal against such decision.

On the question of contravention of the provision of the East Bengal Transfer of Agricultural Land Act XXXIII of 1951, his contention was that in fact Kumud never transferred more than 10 bighas of land. On the question of merits his con tention was that in view of the C. S. records the onus lay upon the defendant to show that he was a tenant in regard to the suit land. Mr. Nag has referred to several decisions in support of his first contention. He has argued on the strength of the decisions in the case of Indra Chandra Mukharjee v. Srish Chandra Banneriee (I L R 40 Ca1. 537), Satyandra Nath Bisi & another v. Narendra Nath Sarker (43 C W N 947), and Shamsuddin Pradhan v. Jasoda Kanta Sen and others (6 D L R 277), Mohini Mohan Roy v. Sankar Das Mohunta (39 C L J 532) and Majid Biswas and others v. Adiluddin Shaikh (P L D 1960 Dacca 907), that no appeal lay against the decision of the learned Munsif Mr. Bhattacharjee, however, pointed out, and 1 thinly rightly that in all those cases the learned Munsif, or the learned Subordinate Judge, as the case might be had S.C.C. powers and as such there was no difficulty in holding that an appeal did not lie against such decision. The test as provided in section 27 read with section 25 of the Provincial Small Cause Court Act seems to be that the suit in question should not only be in the nature of Small Cause Court suit but it must also be decided by a Court of Small Causes. In the present case it does not appear that the learned Munsif who passed orders for registering the suit had any S.C.C. power; nor does it appear that the learned Munsif who actually decided the case had any such S.C.C. power. As there was no other Munsif in that Court, the suit had to be tried in the money file. In these circumstances, it is difficult to agree with Mr. Nag that no appeal lay against the decision of the learned Munsif who admittedly had no S.C.C. powers and who purported to dispose of the case in this ordinary civil jurisdiction.

6. On the other question as to whether there was any contravention of the provisions of the East Bengal Transfer of Agricultural Land Act XXXIII of 1951, it seems there is absence of good evidence to show that Kumud actually transferred more than 10 bighas of land by the time when the kabala dated 13‑5‑57 had been executed.

7. On merits, it however, appears that both the parties have resisted each other on the question of title. The plaintiff tried to have an adjudication on the point as to whether the defendant could in law claim to be a tenant on payment of a fixed quantity of paddy rent. Whatsoever might be the legal position, the fact remains, as found by both the Courts below, that the defendant had been holding the land for a pretty long time. The entries in the relevant C.S. khatian or Exhs. D and D (1) might give different pictures of the state of things as obtained at the relevant time. There is no clear evidence to indicate what was the nature of the lease covered by Exhs. D. and D. (1) Mr. Nag says that T. lease means a kind of lease known in that area as "Tanka lease" which means a kind of tenancy on payment of fixed quantity of paddy as rent. The learned Subordinate Judge has, however, found that T. lease meant "temporary lease." Mr. Bhattacharjee has also tried to show that it could not be anything else. Whatever might be the nature of that kind of lease, it is difficult to ascertain without sufficient materials as to what was the intention of the parties in the matter of having such a lease. There is no materials on the strength of which it can be said at this stage that Rupa Shaikh, the predecessor‑in‑interest of defendant No. 1, executed that document in favour of Shib Nath predecessor‑in‑interest of Kumud Chandra Rudra. All these require a detailed consideration on more elaborate evidence. It is difficult in the face of such scanty materials to adjudicate the question of tenancy as claimed by the defen dant and denied by the plaintiff. It is not disputed that the suit out of which this Rule has arisen is surely in the nature of an S.C.C. suit, and it appears from the conduct of the parties that real dispute centres round the question as to whether defendant No. 1 should be treated as tenant or a mere adhi bargadar. In such circumstances it would have been in the fitness of things to keep the intricate question of title as raised open and to allow a decree in favour of the plaintiff in view of the admission of the defendant No. 1 that he was holding the land under Kumud Chandra Rudra. I would, therefore, direct that the decision of the learned Sub‑Judge be upheld without prejudice to the question of title or tenancy as raised or advanced by the parties.

The result, therefore, is that subject to the condition as indicated above in regard to the nature of the decree this Rule is discharged. There will, however, be no order as to costs of this Rule.

A. H.

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