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Bhugeeruth Berah Vs. Moneeram Banerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1879)ILR4Cal855
AppellantBhugeeruth Berah
RespondentMoneeram Banerjee and ors.
Cases ReferredGrish Chunder Ghose v. Mussamut Kalee Tara
Excerpt:
under-tenure, sale of. - .....their judgment is that what is to be looked at in a case of this nature is, what was sold by the sale certificate; that the mere heading of a certificate that the sale takes place under sections 59 and 60 of beng. act viii of 1899 cannot control the operative words of the certificate itself, and that it is necessary to see clearly what the certificate does pass. now, upon looking into the certificate in the case before us, we find it quite clear that what was sold was the right and interest of behari. this being so, we think that the subordinate judge is wrong in holding that the plaintiff cannot recover from moneeram his share in the tenure, of which moneeram has taken possession. the view taken of the case by the munsif is correct.4. the judgment of the subordinate judge must.....
Judgment:

Birch, J.

1. In this case the Munsif gave the plaintiff a decree, holding that he being the purchaser of a one-anna share in the tenure, and. having been recognized by the zamindar as tenant thereof, the sale in execution of the decree against Behari could not pass the rights of the plaintiff to the purchaser Moneeram. The Munsif says that he does not see any reason why the plaintiff should lose his share because the sale took place in execution of a decree for arrears of rent of which decree he had no notice. And he accordingly gave the plaintiff a decree.

2. Upon appeal the Subordinate Judge has dismissed the plaintiff's suit upon the ground that there was no evidence of any fraud on the part of the purchaser Moneeram, and that Moneeram had acquired an unimpeachable right in the property by reason of his purchase. Upon the case coming up in special appeal, it was sent down to the Subordinate Judge to try an issue as to whether the plaintiff was, as alleged, the koorfa tenant under Behari, or whether he was a shareholder of the tenure. The finding of the Subordinate Judge upon that issue is, that the plaintiff was a shareholder.

3. The case of Grish Chunder Ghose v. Mussamut Kalee Tara (25 W.R., 395), decided by a single Judge of this Court, has been cited in support of the view taken by the Subordinate Judge. We find that, upon that case being taken up in appeal, the decision was reversed by the Chief Justice and Mr. Justice Morris on the 21st March 1877, and the ground taken in their judgment is that what is to be looked at in a case of this nature is, what was sold by the sale certificate; that the mere heading of a certificate that the sale takes place under Sections 59 and 60 of Beng. Act VIII of 1899 cannot control the operative words of the certificate itself, and that it is necessary to see clearly what the certificate does pass. Now, upon looking into the certificate in the case before us, we find it quite clear that what was sold was the right and interest of Behari. This being so, we think that the Subordinate Judge is wrong in holding that the plaintiff cannot recover from Moneeram his share in the tenure, of which Moneeram has taken possession. The view taken of the case by the Munsif is correct.

4. The judgment of the Subordinate Judge must therefore be reversed, and that of the Munsif restored; the appeal being decreed with costs.

Mitter, J.

5. I am also of the same opinion. I desire to add that in the sale certificate, which has been produced by the respondent in this case, there is no allusion to Sections 50 and 60 of Beng. Act VIII of 1869. So that it is clear that this is a stronger case than the one which was before the Chief Justice and Mr. Justice Morris, referred to by my learned colleague.


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