Judgement

Consolidated Appeal (No. 14 of 1930) from two decrees of the High Court (June 17, 1928) on appeal from two decrees of the District Judge of Chittagong (June 27, 1925), made on appeals from a decree of the Second Subordinate Judge. The present appeal was by special leave granted at the hearing.

The effect of the judgment and decrees appealed from was to dismiss a suit brought in 1920 by the appellant against the respondent claiming a decree for Rs.2028-14-0 as rent for the Bengali year 1326 ( 1919- 1920) under a kabuliyat, dated October 11, 1917, relating to part of jote 83 which was included in the appellants taluk.

The respondent by his written statement pleaded (1.) that he had been induced to sign the kabuliyat by undue influence ; (2.) that the appellant had failed to put him into possession of the demised land. The first defence had been negatived by both the two first Courts, and the second only was material to the present appeal.

The judgment of the High Court, which was delivered by Mukherji J. and concurred in by Rankin C.J., dealt also with an appeal in another suit brought by the present respondents sisters against the present appellant and respondent claiming a declaration of their right under Mahomedan law to a share in jote 83 as heirs to their father, and the judgment held that they were entitled to the declaration ; in the present suit the Court held that the District Judge (who had made a decree for the rent) had wrongly placed the burden of proof as to possession upon the defendant, and that the suit failed, as the plaintiff had not proved that the sisters had ever been dispossessed.

The facts appear from the judgment of the Judicial Committee.

The High Court, by a judgment delivered by Rankin C.J., Ghose J. concurring, granted the appellant a certificate that the case was a fit one for appeal to His Majesty in Council. The learned Chief Justice said that since the suit the appellant had brought suits to recover rent for later years, and that consequently, if the proposed appeal suc ceeded, he would make good a claim to an amount over Rs. 10,000; another way of putting the same matter was that the case was one of a recurring liability, and the capital value of the rent was over Rs. 10,000. The matter therefore came within the language of s. 110 of the Code of Civil Procedure.

1931. Oct. 16. Wallach for the respondent. There was no right of appeal under s. 110 of the Code. The claim in the plaint was for Rs.2,048-14-0 as rent. In Gudivada Man-gamma v. Maddi Mahalakshmi (( 1929) L. R. 57 I. A. 56.) the Board held, approving the decision of the Madras High Court in Subramania Ayyar v. Sellammal (( 1925) I. L. R. 39 M. 843.), and disapproving the view of the Calcutta High Court, that the value of the subject-matter of the suit for the purposes of cl. 1 of s. 110 is the value at the date of the plaint. That was followed in Rajendra Kumar Ghosh v. Hemanta Kumar Ghose. (( 1931) 35 Cal. W. N. 699 (P. C).) In the Madras case it was held (( 1925) I. L. R. 39 M. 843,846,849.) that where the operation of the decision is confined to a particular subject-matter, cl. 2 of s. 110, relating to a decree involving a claim respecting property of over Rs. 10,000 value, has no application. The fact that there might be claims for rent for other years is therefore immaterial; moreover the kabuliyat described the tenancy as "a non-permanent (bekaemi) lease," and it was therefore terminable on notice. It is true that in Surapati Roy v. Ram Narayan Mukerji (( 1923) L. R. 50 I. A 155, 161.), which related to two suits for rent, amounting to about

Rs.2500, under a darpatni lease, the Board held that there was a right of appeal and referred to the recurring liability for rent, but the real issue there was whether the darpatni had been validly transferred, therefore the case involved a question of title.

Pringle for the appellant. There is a right of appeal for the reasons stated by the High Court. In Radhakrishna Ayyar v. Sundar