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Shripad Balvant Kasture Vs. Nagu Kushaba Kate - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case NumberSecond Appeal No. 119 of 1935
Judge
Reported inAIR1943Bom301; (1943)45BOMLR109
AppellantShripad Balvant Kasture
RespondentNagu Kushaba Kate
DispositionAppeal allowed
Excerpt:
.....the local custom to enhance the rent in the case of that particular kind of tenure.;sitaram v. tukaram (1920) 23 bom. l.r. 395 and rajya v. balkrishna gangadhar (1905) i.l.r. 29 bom. 415, s.c. 7 bom. l.r. 439 followed.;it is not easy to reconcile the dicta in sitaram v. tukaram with the ruling vyasacharya madhavacharya v. vishnu vithal.;the death of one of two joint owners during the pendency of an appeal does not prevent the appeal being prosecuted by the other.;chandarsang v. khimabhai, (1897) i.l.r. 22 bom. 718 chintaman v. gangabai (1903) i.l.r. 27 bom. 284, s.c. 5 bom. l.r. 90 and satulal bhattachariya v. asiruddin shaikh, (1934) i.l.r. 61 cal. 879 followed. - - it is unnecessary to consider whether there is any substance in that argument becausethe case is clearly covered by o......cites vagha v. manilal (1934) 37 bom. l.r. 249and argues that because the appellant-plaintiffs are joint owners they mustall be parties to the appeal, and as the appeal has abated in the case of appellant no. 2, it should be taken to have abated altogether. we think thatthere is no substance however in this point.2. it appears that the appellants sold all their rights to a third party, avahivatdar of a temple at satara, on july 31, 1936, after which they ceasedto be interested in the property in dispute. the new; owner has been madeappellant and permitted to proceed with the appeal by an order of this courtmade on june 25, 1941. mr. bakhale has contended that this order shouldnot have been made because the appeal had abated before that. it is unnecessary to consider whether there is any.....
Judgment:

Broomfield, J.

1. A preliminary objection has been taken that this appealhas abated because appellant No. 2 died on August 12, 1937, and a belatedapplication by his sons to be brought on record was dismissed on March 5,1941. Mr. Bakhale who appears for the respondent cites Vagha v. Manilal (1934) 37 Bom. L.R. 249and argues that because the appellant-plaintiffs are joint owners they mustall be parties to the appeal, and as the appeal has abated in the case of appellant No. 2, it should be taken to have abated altogether. We think thatthere is no substance however in this point.

2. It appears that the appellants sold all their rights to a third party, avahivatdar of a temple at Satara, on July 31, 1936, after which they ceasedto be interested in the property in dispute. The new; owner has been madeappellant and permitted to proceed with the appeal by an order of this Courtmade on June 25, 1941. Mr. Bakhale has contended that this order shouldnot have been made because the appeal had abated before that. It is unnecessary to consider whether there is any substance in that argument becausethe case is clearly covered by O. XLI, Rule 4, of the Civil Procedure Code. Thecases cited by Mr. Dharap, Chandrasang v. Khimabhai I.L.R. (1897) 22 Bom. 718 Chintaman v. Gangabai I.L.R. (1903) 27 Bom. 248 and Satulal Bhattacharjya v. Asiruddin Shaikh (1934) I.L.R. 61 Cal. 879 make it quite plainthat the death of one of two joint owners during the pendency of an appealdoes not prevent the appeal being prosecuted by the other. In fact there isno rule that all joint owners must be parties to appeals, although it has beenheld that they must be parties to suits.

3. On the issue which we sent down, both the lower Courts have found thatthe plaintiffs have the right by virtue of usage to enhance the rent. Thetrial Judge found that they had the right to enhance to the extent of threetimes the assessment, namely Rs. 53-13-0. But the Assistant Judge takesthe view that it should be up to two and a half times the assessment, namelyRs. 45 a year. Mr. Dharap accepts that finding. The result is that theoriginal decision of the Subordinate Judge on March 16, 1933, turns out tobe correct. Appeal allowed. Judgment and decree of March 16, 1933,restored. The appellants must get their costs throughout.


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