Skip to content


ichhalal Jagmohanas Vs. Anjibai Zujya Duma - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 23 of 1926
Judge
Reported in(1928)30BOMLR1602; 114Ind.Cas.272
Appellantichhalal Jagmohanas
RespondentAnjibai Zujya Duma
Excerpt:
.....to embody in the decree a declaration of the landlord's title though it may be proved in the case.;bai nathi v. narsi dullabh (1919) i.l.r. 44 bom. 321, 325, s.c. 22 bom. l.r. 64 followed.;niamut khan v. phadu ruldia (1880) i.l.r. 6 cal. 319, f.b., dissented from. - - the first court found in favour of the appellants, and granted them a decree in ejectment as well as a decree for rs. 20 for rent, the appellate court held that the appellants had failed to prove that the yearly tenancy was terminable on october 31, in each year the rent note of 1897, which was adduced in evidence, showed that the tenancy began in july 1897, and ended in may 1898. there was no evidence to show that there was any fresh contract between the parties or their predecessors-in-title that the year of..........for rs. 20 for rent, the appellate court held that the appellants had failed to prove that the yearly tenancy was terminable on october 31, in each year the rent note of 1897, which was adduced in evidence, showed that the tenancy began in july 1897, and ended in may 1898. there was no evidence to show that there was any fresh contract between the parties or their predecessors-in-title that the year of tenancy should end in ashwin or october, the lower court, relying on section 84 of the land revenue code, held that the notice did not in law terminate the tenancy. we agree with the view of the lower court. the lower court, however, in reversing the decree of the first court, lost sight of the fact that the first court, in addition to giving possession of the land to the appellants,.....
Judgment:

Mirza, J.

1. The appellants brought this suit to eject the respondent from the tenancy of certain lands belonging to the appellants, and also claimed Rs. 20 for rent. The notice terminating the tenancy was dated June 22, 1921, and inter alia stated that the year of cultivation would terminate in the month of Ash win, i. e,, October 31, and that possession of the property along with Rs, 20 for rent should be then given. The first Court found in favour of the appellants, and granted them a decree in ejectment as well as a decree for Rs. 20 for rent, The appellate Court held that the appellants had failed to prove that the yearly tenancy was terminable on October 31, in each year The rent note of 1897, which was adduced in evidence, showed that the tenancy began in July 1897, and ended in May 1898. There was no evidence to show that there was any fresh contract between the parties or their predecessors-in-title that the year of tenancy should end in Ashwin or October, The lower Court, relying on Section 84 of the Land Revenue Code, held that the notice did not in law terminate the tenancy. We agree with the view of the lower Court. The lower Court, however, in reversing the decree of the first Court, lost sight of the fact that the first Court, in addition to giving possession of the land to the appellants, had passed a decree in their favour for Rs. 20 for rent. No point was specifically taken in the grounds of appeal in the lower appellate Court questioning the finding of the first Court that Rs. 20 were due for rent. The suit was filed on September 4, 1922, and the amount of rent would be due as at the end of May 1922. There is no sufficient reason shown why the decree of the first Court in respect of this sum of Rs. 20 should not stand.

2. Mr. Shingne, on behalf of the appellants, applies that the concurrent finding of the two Courts with regard to the title of the appellants to the land in suit may be incorporated in the decree. We see no sufficient reason to accede to the application. In our opinion the decree of the lower appellate Court should be varied by passing a decree for the appellants for Rs. 20 for rent. As the appellants have only partly succeeded, there will be no order as to costs of this appeal.

3. The cross-objections will be dismissed with costs.

Baker, J.

4. I agree. I should like to say a word about the argument of the learned pleader for the appellants as to incorporating the findings of the lower appellate Court, on the question of title, in the decree. That application he bases on the case of Niamut Khan v. Phadu Buldia I.L.R (1880) Cal. 319. We decline to do that, because it is unnecessary in the present case, for any question of res judicata will arise not in the present case, but in the sub-sequent case between the same parties. But the case on which he relies, Niamut Khan v. Phadu Buldia, has been practically overruled by the case of 1'hakur Magundeo v. Thakur Mahadeo Singh I.L.R (1891) Cal. 647 which is again followed in Parhati Debi v. Mathura Nuth Banerjee I.L.R (1912) Bom. 321: 22 Bom. L.R. 64. The subject will be found discussed in Bai Nathi v. Narsi Dullabh, and in view of the remarks of Macleod C.J. in that judgment it does not appear that any useful result would be secured by entering in the decree any findings on the issues dealt with by the lower Courts.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //