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Rash Behari Bose Vs. Purna Chunder Mozumdar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal350
AppellantRash Behari Bose
RespondentPurna Chunder Mozumdar and ors.
Excerpt:
sale for arrears of revenue - ejectment, right of--benamee lease obtained by defaulting proprietor from purchaser at revenue sale. effect of on under-tenure--act xi of 1859, sections 37, 53. - .....plaintiff has obtained a talukdari pottah; and it is on the strength of this pottah granted by the auction-purchaser that the plaintiff, under the provision of section 37 of act xi of 1859, sues to eject the defendant no. 4.3. it has been found as a fact by both the lower courts that the plaintiff is merely a benamidar for the defendant no. 1; that is to say, that the talukdari pottah under which he claims was granted by the auction-purchaser to one of the defaulting proprietors; and they have accordingly held that the present suit cannot be maintained; that is to say, that the defaulting proprietor cannot be allowed in equity to turn out of this jumma a tenant whom he himself left in.4. it is contended on second appeal that this decision is erroneous; that section 53 of act xi of 1859.....
Judgment:

Beverley, J.

1. The facts of this case are somewhat complex.

2. The plaintiff sues to eject the defendant No. 4 from a certain jumma within a certain mehal. The defendant No. 4 purchased this jumma from the defendant No. 3, who had been holding it for some time as a tenant under the defendants Nos. 1 and 2, the proprietors of the mehal. The defendants Nos. 1 and 2 having defaulted, the mehal was brought to sale for arrears of revenue and purchased by one Prosunno Coomar Dutt, whose rights were transferred to the defendant No. 6, from whom the plaintiff has obtained a talukdari pottah; and it is on the strength of this pottah granted by the auction-purchaser that the plaintiff, under the provision of Section 37 of Act XI of 1859, sues to eject the defendant No. 4.

3. It has been found as a fact by both the lower Courts that the plaintiff is merely a benamidar for the defendant No. 1; that is to say, that the talukdari pottah under which he claims was granted by the auction-purchaser to one of the defaulting proprietors; and they have accordingly held that the present suit cannot be maintained; that is to say, that the defaulting proprietor cannot be allowed in equity to turn out of this jumma a tenant whom he himself left in.

4. It is contended on second appeal that this decision is erroneous; that Section 53 of Act XI of 1859 will not apply to this case, inasmuch as the plaintiff-that is to say, the defendant No. 1-has not acquired the whole of the auction-purchaser's interest, but has only taken a lease of a portion of that interest.

5. It seems to us quite clear that the present case does fall within the principle of s. 53, which is that a defaulting proprietor shall not be allowed to take advantage of his own default in order to disturb subordinate interests in the land. The words of the section material to this case are these: 'Any recorded or unrecorded proprietor or co-partner who may purchase the estate of which he is proprietor or co-partner, or who he repurchase or otherwise may recover possession of the said estate, if it has been sold for arrears under this Act, shall by such purchase acquire the estate subject to all its encumbrances existing at the time of sale, and shall not acquire any rights in respect to under-tenants or ryots which were not possessed by the previous proprietor at the time of the sale of the said estate.' The words 'or otherwise' are quite wide enough to include a case like the present, where the former proprietor has recovered possession of a portion of the property by virtue of a lease from the auction-purchaser.

6. For these reasons, therefore, without going into the other question raised in this appeal, we think it is quite clear that the plaintiff's suit was properly dismissed.

7. This appeal is dismissed with costs.


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