Richard Garth, C.J.@mdashI think that this rule should be made absolute. It was obtained on the ground that the Small Cause Court had no jurisdiction to try the suit.
2. The facts were these: the plaintiff and defendant and a third person, being co-proprietors of certain lands, the plaintiff brought this suit to recover his share of the rent of a portion of those lands, which the defendant had received from the ryot.
3. The answer of the defendant was this, that he and the plaintiff and a third person, being co-proprietors of the lands, the defendant had, with the plaintiff''s consent, received the rent not only of this particular jote, but of several other jotes; and that he had disbursed that money in various ways for the benefit of the three co-proprietors.
4. Under these circumstances it was contended, and it seems to me rightly contended, that it was impossible to try the case, so as to do justice to all parties concerned, except by taking an account. The sums which the defendant had disbursed could not properly be set off against the claim in this suit, and it would obviously be unjust to the defendant to allow the plaintiff to recover the share of the rent which he was asking for, and yet not to allow the defendant to set off against the plaintiff''s claim the sums which he paid for the benefit of the plaintiff and other proprietors.
5. The suit was clearly one which involved questions of partnership account between the joint proprietors of an undivided estate ; and therefore the Small Cause Court had no jurisdiction to try it.
6. Our attention has been called to the case of Ram Coomar Chowdry v. Shama Churn Chowdry (Suth., S.C.C. Ref., 33), in which the facts were substantially the same as those in the present case; and it was held, for the reason which I have just explained, that the Small Cause Court had no jurisdiction to try the suit. There is also another case, Kandaree Joardar v. Mannik Joardar (Suth., S.C.C. Ref., 23) to which our attention has also been called. There it appears that one co-proprietor brought a suit against another co-proprietor for a portion of the produce of certain land which belonged to them both ; and the Judges seem to have thought that case distinguishable from the general rule which is laid down in the other case at page 33. I confess, I feel some difficulty in recognizing the distinction. It seems to me that, under such circumstances, no suit could, with justice, be disposed of in the Small Cause Court.
7. I am of opinion, therefore, that this rule should be made absolute with costs.
