Patna High CourtRaja Ram Singh vs Kanhaya Rai And Ors. on 18 January, 1950Equivalent citations: AIR1950PAT284, AIR 1950 PATNA 284JUDGMENT
 

 Das, J.1. This second appeal has been heard along with the application in revision, and this judgment will govern them both. These two cases were originally placed before Meredith 3, (as he then was), who directed that they be placed before a Division Bench for disposal. The second appeal arises out of Title Suit no. 180 of 1946, and the revision out of S. C. C. Suit No. 145 of 1946 (hereinafter to be referred to as title suit and S. S. C. suit respectively.)2. The two principal questions which arise for decision are (1) whether a suit for a half share in the fruits of fourteen mango trees standing on plot no. 6515 of holding No. 66 recorded as gairmazrua malik, against a person who is recorded in the record of rights as being 
in possession of half share in the trees, is cognizable by the Court of Small Causes; and (a) whether the tight to the half share in the fruits passed to the present appellant, who wag defendant first party in the title suit and plaintiff in the S. C. C. suit, by reason of the transfer made by one Bharat Narain with whom the land on which the trees stand was settled by the then landlord, Mahanaud Sahaya, whose interest has since been transferred to the defendants third party in the title suit.3. The material facts are the following. Mahanand Sahaya was the sixteen annas landlord of the land in question. The plaintiffs in the title suit, respondents before us, alleged that sometime before survey fourteen mango trees were planted by the ancestor of themselves and the defendants second party. The landlord used to appropriate half the fruits of the trees, and the other half was appropriated by themselves and the defendants second party. Mahanand Sahaya settled the land of plot No. 6675 and some other landa on cash rental with Bharat Narain, and recognised him as his tenant. Bhatat Narain sold his interest in the land with the trees to the defendants first party (the appellant) by means of a registered sale deed, dated 14th April 1936. The latter filed a small cause court Suit No. 63/66 of 1943 against the plaintiffs and the defendants second party claiming half share of the fruits. This suit was first decreed ex parte. There was an application under Order 9, Rule 13, Civil P. C. by defendants 3 and 4 (defendants second party in the Title Suit), The ex parte decree was set aside. A contested decree was then passed in favour of the present appellant. The plaintiffs respondents alleged that the decree was obtained by fraudulently suppressing summons and they brought the title suit for two declarations and an order of injunction. The declaration they asked for were, (1) that the decree obtained in the Small Cause Court suit was a nullity and in any view, not binding on them, and (4) that the present appellant was not the landlord and, therefore, not entitled to get half share of the fruits from them. Several issues were joined between the parties, of which Issues 4, 6 and 6 were the most important. Issue No. 4 related to the question if the claim in the title suit was barred by res judicata. Issue No. 5 raised the question if the decree passed in the Small Cause Court suit was valid and binding. Issue no. 6 related to the question if the present appellant had any right to the half share in the fruits. The learned Munsif, who dealt with the suit in the first instance, held against the appellant on all the questions. He held that the appellant had no right to get half share of the fruits, that the suit was not barred by res judi-cata and that no summons was served on the plaintiffs respondents in the Small Cause Court suit. It is to be observed, however, that the learned Munsif did not find any fraud in connection with the Small Cause Court suit. He merely held that no summons was served on the plaintiffs-respondents. On the findings mentioned above, the learned Munsif passed a decree in favour of the plaintiffs-respondents. An appeal was then made which was heard by the learned Second Additional Subordinate Judge who affirmed the findings of the learned Munsif and dismissed the appeal. Then, the present second appeal has been filed in this Court from the decision of the Courts below.4. The application in revision arises out of the Small Cause Court suit filed by the appellant of the second appeal in which he claimed half share of the fruits for a subsequent period, namely 1363 and 1363 faslis. This suit was dealt with by the same Munsif who decided the title suit. On the decision in the title suit, the learned Munsif, as Small Cause Court Judge, held that the present petitioner was not entitled to half share in the fruits, and the suit was not, therefore, maintainable. On that view he dismissed the suit. The application in revision ia directed against that order of dismissal. The appellant in the second appeal is the petitioner in the civil revision. For the sake of convenience, I shall call him the appellant throughout the judgment.5. There is one matter which, I think, can be disposed of at the very out set. If the Small Cause Court had jurisdiction to take cognizance of the suit for the recovery of half share of the fruits of the fourteen mango trees, then the decree passed by the Small Cause Court in Small cause court Suit no. 66 of 1943 must be held to be binding on the plaintiffs-respondents. No fraud having been found by any of the two Courts below in connection with the earlier Small Cause Court suit, the decree passed therein cannot be set aside merely on a finding that summonses were not properly served. A separate suit on that ground only would be barred under the provisions of Order 9, Rule 13, Civil P. C. This aspect of the matter appears to have been lost sight of by the Courts below. Therefore, the two principal questions which fall for decision in these two cases are those which I have stated at the beginning of this judgment.6. It would, I think, be convenient to take up first the question if the Small Cause Court has jurisdiction to take cognizance of a suit for the recovery of half share in the fruits of the fourteen mango trees. We have been referred toArticles 8, 13and36of Schedule 2,Provincial 
Small Cause Courts Act. The main argument, however, relates to Ait. 8.Section 16 (1)of the Act states that a Court of Small Causes shall not take cognizance of the suits specified in Schedule 2, as suits excepted from the cognizance of a Court of Small Causes. Sub-section (2) ofSection 15states that subject to the exceptions specified in Schedule 2 and to the provisions of any Act for the time being in force, all suits of a civil nature of which the value does not exceed Rs. 600 shall be cognizable by a Court of Small Causes.Article 6of Schedule 2 reads:"a Bait tot the recovery of rent, other than house rent, unless the Judge of the Court of Small Causes has been expressly invested by the Provincial Government with authority to exercise jurisdiction with respect thereto."The position, therefore, comes to this: if the suit for the half share of the fruits of the fourteen mango trees is a suit for rent, then by reason ofArticle 8of Schedule 2, such a suit will not be cognizable by the Court of Small Causes. The question, therefore, is if the half share of the fruits of the fourteen mango trees is rent or not. The word 'rent' does not appear to have been defined in theProvincial Small Cause Courts Act, or theGeneral Clauses Act. The Bihar Tenancy Act, defines rent as meaning whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant. It is not disputed that the plaintiffs-respondents were not in occupation of the land on which the trees stand. They have been recorded in the record of rights as being entitled to a half share in the trees. They are not tenants of the land and do not use or occupy the land. Therefore, it is clear and not disputed that the half share of the fruits of the fourteen mango trees does not come with, in the definition of rent as given in the Bihar Tenancy Act. Learned counsel for the respondents has very strenuously contended before us that fruit-tearing trees, as distinguished from standing timber, are immoveable property as defined in the T. F. Act, and the half share of the fruits of such trees is rent within the definition ofSection 105, T. P. Act. In my opinion, there is a very short answer to this contention. It was nowhere the case of the respondents that a lease of the trees, assuming they are immoveable property within the definition of theTransfer of Property Act, was given in their favour by the landlord. As a matter of fact, such a lease if made from year to year, or for any term exceeding one year, or reserving a yearly rent, could be made only by a registered instrument (vide, the provisions ofSection 107, T. P. Act). It is not the case of the respondents that any written or registered lease was made in their favour. Learned counsel for the appellant has referred us toSection 117T. P. Act 
and has contended that planting of trees is agriculture, a term wider than mere cultivation, and therefore, none of the provisions of Chap. 6,T. P. Actapply to the present case. It is, I think, unnecessary to deal with that argument in the present case. As I have stated above, there was no plea that a lease was made in favour of the respondents in respect of the trees. What happened was that the ancestors of the respondents planted certain trees on the gair-mazrua land of the landlord. In doing so they acted as mere trespassers and could be sued in eviction. But there was an agreement between the landlord on one side and the ancestors of the respondents on the other to the effect that half share in the trees and the fruits thereof would be taken by the landlord and the other half would be appropriated by the respondents. Such an agreement did not, in my opinion, constitute a lease within the meaning of theTransfer of Property Act, and the half share of the fruits payable to the landlord as a result of the agreement was not rent within the meaning 6f Section 105, T, P. Act. In this view of the matter, it is unnecessary to consider and examine in detail any apparent conflict of the case law on the subject, such as has been referred to by Meredith J. in his order directing the cases to be placed before a Division Bench for disposal. I may, however, refer very briefly to the case law on the subject. As I have already stated, the word 'rent' has not been defined in theSmall Cause Courts Act. In the Oxford Dictionary the word has been shown as having various meanings, one of which is    "the return or payment made by a tenant to the owner or landlord, at certain specified or customary times, for the use of lands or houses."The meaning of the word 'rent' inArticle 8of Schedule 2,Small Cause Courts Act, has given rise to decisions, not all of which are uniform. In the Full Bench decision of the Calcutta High. Court in Siris Chandra v. Nasim Quazi, 4 0. w. N. 367: (37 Cal. 827), the question raised was if a suit brought by an assignee for recovery of arrears of rent assigned after they fell due, was a suit for recovery of rent, and therefore, excepted from the Court of Small Causes. Tbe majority of the Judges held that such a suit was a suit for rent within the meaning ofArticle 8.Banerjee J. dissented from that view. The view expressed by the majority of the Judges was that 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. Banerjee J. said:"The Actdoes not define.... rent; but according to the ordinary signification of the term, It means (I confine my remarks to money rent) money payable by one person for use and occupation of land to another person under whom he holds the land."The view of Banerjee, J. was that if the landlord had transferred to the plaintiff not only his right to the arrears of rent, bat also his interest in the land, it was then only that the transferee could be said to be claiming the amount in the same right as the landlord; but as the landlord's interest in the land had not been transferred to the assignee of the arrears of rent, the claim for the amount ceased to be one for rent after the assignment, by reason of the second characteristic, namely, that of the debt being due to the landlord, no longer attaching to it, and it became reduced to a claim for an ordinary debt. In an earlier decision in Brojonath v. Gopi Shekrani, 23 Cal. 835, it was held that a suit by the proprietor of a bustee land for the recovery of municipal taxes from the owner of a hut in the bustee was a suit cognizable by the Small Cause Courts, becauseArticle 8was expressly limited to suits for rent, and the liability in the suit under consideration was not a liability for rent.InProhlad v. Sashadhar Rai, 14 C. W. N. 994 : (7 I. C. 563) the defendant took a lease of a ferry appertaining to the plaintiff's putni mehal fox four years agreeing to pay us. 60 to him annually. A suit was brought in the Small Cause Court for the amount due for 1313. The contention of the defendant was that the suit was for rent, and the Small Cause Court had no jurisdiction to try it. In that decision, it was observed that each case of this class must be determined according to its own peculiar circumstances, and it was held that what was claimed in the suit was a sum payable under a contractual relationship and referable to that relationship; therefore it was in no sense rent. In the course of the arguments, reference was made toSection 8, T. P. Act, and also toSection 3 (36), General Clauses Act.In the case, Maharaja of Kashmir v. Fatteh Din, 164 P. R. 1888 at p. 431, it was held that a suit for Rs. 37 as money due for the use of a masonry outlet, alleged to be the property of the plaintiff, for the irrigation of the defendant's land was a suit for the recovery of a aum in the nature of rent, and not being for house-rent, was not cognizable by a Court of Small Causes underArticle 8of Schedule II. Rattigan J. observed:"There is no definition at 'rent'In the Act, but we take it that the term as there used has the ordinary meaning of a compensation paid to the owner of immovable property for its use or occupation. In this sense the money due for the use of the outlet would be rent."The two decisions of our own High Court which have been brought to our notice are Jhakar Sahu v. Rajkumar Tewari, 17 P. L. t. 88: (A. I. R. (23) 1936 Fat. 108) and Kameshwar Singh v. Mahabir Past, 15 Fat. 696: A. I. R. (S3) 1936 pat. 403). In the earlier decision it was held that a suit for recovery of money value of bhauli produce of some Mahua trees was not 
suit for rent, but a suit for money only, and underSection 102, Civil P. C., no second appeal lay. Reliance was placed on Maung Kywe, 7. Maungkala, 4 Bang. 503: (A.i.r. (14) 1927 Bang. 94), where compensation claimed for the lease of palm trees was held to be not rent, as the trees did not come within the definition of immoveable property. Learned counsel for the respondents has contended before us that neither in the Rangoon decision nor in the single Judge decision of this Court referred to above, wag the question considered from the point of view of the use of the word 'rent' inSection 105, T. P. Act. Our attention has been drawn to some decisions of thia Court in which fruit bearing trees have been held to be immoveable property within the meaning of theTransfer of Property ActorRegistration Act(vide Bodha Ganderi v. Ashloke Singh, 5 pat. 766 : (A. I. R. (14) 1927 Pat. 1) and Lalji Singh v. Nawab Chaudhury, 1 Pat. 646 : (A. I. R. (15) 1928 Pat. 662). In the second decision, Kameshwar Singh v. Mahalir Pasi, 15 pat. 626 : (A. I. R. (23) 1936 pat. 403), the question which arose for consideration was one of limitation, namely, whetherArticle 110,Limitation Actapplied orArticle 2 (b)of Schedule 3,Bengal Tenancy Act. It seems to me that the real question at issue in that case was whether money due on settlement by auction of date and toddy palm trees was rent within the meaning of the Bihar Tenancy Act, though it was observed that the payments sued for were not rent, and suits to realise them ought to have been brought in a Small Cause Court. It was decided thatArticle 110,Limitation Actapplied, which is also an Article relating to recovery of rent, though not within the meaning of the Bihar Tenancy Act. Therefore', the question whether the payment was rent within the meaning of theTransfer of Property Actwas not considered nor decided in that case. Assuming, however, that the question is still at large, I am of the view, as I have already stated, that the payment in the particular case before us is not rent either within the meaning of the Bihar Tenancy Act or theTransfer of Property Act, Here, the payment is not for the use and occupation of any land ; therefore, it is not rent within the meaning of the Bihar Tenancy Act; nor was there any lease of the mango trees in question. Therefore, the payment is not rent within the meaning ofSection 105, T. P. Act.7. Learned counsel for the appellant has also contended before us thatSection 117, T. P. Act will apply, and even if there was a lease it was for horticultural purposes : therefore, the provisions of chap. v.T.P. Act, will not apply. Our attention has been drawn to a number of decisions where it has been held that the term 
'agricultural purposes' is of a wide import and includes horticultural purposes as well. In my view, it is unnecessary to consider thia aspect' of the case as I am satisfied that this is not the case of a lease of the mango trees. The suit for half share in the fruits of the fourteen mango trees standing on plot no. 6576, holding No. 86, was, therefore, cognizable by the Court of Small Causes. As toArticles 13and36 (ii)of Schedule 2, I need say only a few words.Article 13clearly has no application, because the payment was neither malikana, hakk, cess or other dues payable by a person by reason of his interest in the immoveable property, etc. As toArticle 36 (ii), there are decisions of this Court which show that mere wrongful cutting of a tree or taking of fruits from a tree is not necessarily penal so as to bring the person, who cuts the tree or takes the fruits, within the purview of the Penal Code; Therefore, the jurisdiction of the Small Cause Court is not at all barred. (See Damodar Jha v. Baldeo Prasad, 11 P. L. t. 741: (A. i. r. (17) 1930 pat. 575) and Bharosa Singh v. Jhauri Sao, 161 I. C. 937 : (A. i. r. (23) 1986 pat. 428). Moreover, the bar ofArticle 35 (ii)of Schedule 2 was not pleaded in any of the Courts below, and the question is not purely one of law.8. I now turn to the other principal question for decision in these two cases; namely, whether the right to the half share in the fruits passed to the appellant. I have already stated that the appellant is a purchaser from Bharat Narain by means of a registered sale-deed, dated 14th April 1936. As to Bharat Narain's interest, the respondents themselves stated as follows in para. 3 of their plaint :"That Babu Mahanand Salmi, the proprietor, settled the lands of Plot No. 6575 along with, other lands with Babu Bharat Narain Singh on nakdi rent and treated him as tenant, and Baba Bharat Narain Singh entered into and continued to be in possession of the lands settled with him as a tenant."Learned counsel for the appellant has contended that the interest of the landlord in the trees would pass to Bharat Narain with the settlement of the land, and has relied on Shaikh Mohammad Ali v. Bolakee Bhuggut, 24 W. R. 330. That was a suit to recover possession of a tree and of its produce where the defendants were admitted to be the plaintiff's tenant as to the land on which the tree stood. It was held that the tree was rightly presumed to be included in the lease, and that it was for the plaintiff to establish that he was entitled to remain in possession of the tree notwithstanding the lease. In Jaigobind Singh v. Bhawani Singh, 9 Pat. 401 : (A.I.R. (17) 1930 pat. 382), it was held that ft settlement of land carries with it, in the absence of express reservation, the right to fish when there is water on the land. Bharat Narain's 
lease was not in dispute; rather it was admitted by the respondents. Therefore, Bharat Narain was entitled to the half share of the fruits, and if ha was so entitled, he had transferred the same to the appellant by means of the registered sale-deed referred to above. My view, therefore, is that the right to the half share in the fruits passed to the present appellant.9. The result, therefore, is as follows : The second appeal is allowed, the decisions of the Courts below are set aside and the suit of the plaintiffs-respondents will now stand dismissed. The appellant will be entitled to his costs through, out. The application in revision is also allowed and the order of dismissal passed by the learned Small Cause Court Judge on the finding that the suit is not maintainable is set aside. The Small Cause Court suit is remanded, and must now be heard on merits on the question as to the money value of the share payable to the present petitioner. This remand is necessary, as the learned Small Cause Court Judge did not arrive at any findings on this question, in view of his finding on the maintainability of the suit. The petitioner will get his costs, but there will be no separate hearing fee as the second appeal and the application in revision have been heard together.Reuben, J.10. I agree.