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Barada Prasad Banerjee and anr. Vs. Bhupendra Nath Mukherjee - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Judge
Reported inAIR1924Cal56,75Ind.Cas.55
AppellantBarada Prasad Banerjee and anr.
RespondentBhupendra Nath Mukherjee
Cases ReferredGrish Chandra Ghando v. Sirish Chandra Das
Excerpt:
landlord and tenant - tenant at fixed rent--permanent tenancy--excavations by tenant--suit for damages by landlord--injunction. - .....is one-fourth of the amount claimed just to vindicate the right of the plaintiff.' as to the other land, the subordinate judge has found that there was no material alteration of the land and the excavation was acquiesced in. the question, therefore, is whether the defendants are entitled to make the excavation-complained of and whether the plaintiff is entitled to any damages. obviously, the provisions of section 23 of the bengal tenancy act to which reference was made in the course of the argument do not apply. there is nothing in the law which prevents tenants having permanent heritable rights at a fixed rent from using the land in any manner they think fit so long as there is no risk to the right of the landlord to recover the rent payable, and, i think, it is now settled that unless.....
Judgment:

B.B. Ghose, J.

1. These two appeals arise out of two suits brought by the plaintiff against the defendants. The principal prayer of the plaintiff is this : 'That it may be declared that, save and except jarkaemi (ordinary) ticca jote right to terminate at will under the plaintiff in respect of the land and jama described in that schedule, the defendants have no right and power to make hollows and excavations and to manufacture bricks in the said land and jama and thus to change the features of the jote and to alter the character of the tenancy.' It is unnecessary to state any of the other prayers of which there is a large number, except that the plaintiff claims damages for certain excavations made by the defendants on the lands comprised in the tenancies. The Court of first instance dismissed the suits entirely. On appeal, by the plaintiff, the Subordinate Judge had-made a partial decree in his favour. With regard to Appeal No. 5, arising out of one of the suits, his order runs thus : 'The plaintiff's suit is decreed in terms of prayers ka and kha of the plaint and that he do recover from the defendants Nos. 1 to 3 Rs. 6-4 as damages and that the other prayers be dismissed. So far as ka prayer is concerned, the first part of the prayer that the defendants are Jarkaemi ticca tenants-at-will be dismissed, but it will be declared that they have no right to make excavations and to alter the nature of the tenancy.' In appeal No. 6, the only relief allowed is this. 'The plaintiff will get a declaration that the defendants have no right to make excavations for brick making and that they are permanently restrained from doing so in future so as to extend the excavation'; and the other prayers were rejected. The findings of the learned Subordinate Judge at to the nature of the tenancies are as follows : 'The land in Appeal No. 6 is not agricultural. It comprises bastu and bagan. The evidence so far as it can be traced leads us to a very old date and the rent never changed and there were inheritances and transfers recognised'. From this, he comes to the conclusion that it is a tenancy at a fixed rate, although he makes use of the words 'holding at a fixed rate.' The result is that it is a permanent tenancy not governed by the Bengal Tenancy Act. With regard to the other tenancy which was the subject of the Appeal No. 5 before him, he holds that the defendants are permanent tenure-holders. This tenure consists of about 133 bighas of land and the act complained of is that some excavations have been made for the purpose of making bricks on two plots to the extent of about 24 feet 21 feet. The Subordinate Judge says, 'having regard to the circumstances, I allow only nominal damage, that is one-fourth of the amount claimed just to vindicate the right of the plaintiff.' As to the other land, the Subordinate Judge has found that there was no material alteration of the land and the excavation was acquiesced in. The question, therefore, is whether the defendants are entitled to make the excavation-complained of and whether the plaintiff is entitled to any damages. Obviously, the provisions of Section 23 of the Bengal Tenancy Act to which reference was made in the course of the argument do not apply. There is nothing in the law which prevents tenants having permanent heritable rights at a fixed rent from using the land in any manner they think fit so long as there is no risk to the right of the landlord to recover the rent payable, and, I think, it is now settled that unless there are any reservations, the landlord has no right in the case of such tenures other than the right to receive the stipulated rent. There is no actual damage found in these cases for which the landlord is entitled to any relief. There does not appear to be any justification for the ground on which the Subordinate Judge has allowed nominal damages. Reliance has been placed on behalf of the respondents on the case of Anund Coomar Mookerjee v. Bisso Nath Banerji (1872) 17 W.R. 416 as supporting the contention that even if a mukararidar makes an excavation on the land, he is liable to damages. But it will be found that, in that case, the excavations were considerable and it was remarked that, if the landlord wanted to bring a suit for enhancement against the defendant on the ground that the value of the produce or that the productive power of the land had increased, he would find it extremely difficult to make out any case at all in consequence of the soil having been excavated and taken away by the 'defendants for the purpose of making bricks'. That case has, therefore, no application to the circumstances before us. Then as to the question of injunction, there is no finding that anything has been done so as to affect the right of the landlord to obtain his rent. In my judgment the case of Grish Chandra Ghando v. Sirish Chandra Das (1904) 9 C.W.N. 255, relied on by the Subordinate Judge and also by the learned vakil for the respondents, is not of any assistance to the plaintiff. In that case, it was held that, if the excavations by the tenant were such as would cause the total destruction of the property, he might be restrained from making them. Here the, plaintiff did not charge the defendants with any such act of waste as would be detrimental to his interest. The ground on which an injunction was asked for is that the defendants are garkaemi ordinary ticca jote tenants whose rights are terminable at will and that they have no right to use the land in the way alleged. That has been found against the plaintiff. In my opinion, the plaintiff has not made out any case for an injunction. The plaintiff is not, therefore, entitled to any of the reliefs granted by the Subordinate Judge and his suits must fail. The appeals are accordingly decreed and the suits dismissed with costs in all Courts.

Walmsley, J.

2. I agree.


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