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Nepal Chandra Ghose Vs. Mohendra Nath Roy Chowdhury - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal707
AppellantNepal Chandra Ghose
RespondentMohendra Nath Roy Chowdhury
Cases ReferredGuni Mahomed v. Moran
Excerpt:
landlord and tenant - suit--rent--co-sharer landlord--variance between pleading and proof--converting suit of one nature into one of a different nature. - .....the whole 16 annas of the rent. it turned out that, at the most, he was entitled only to a 4 annas share, and a decree has accordingly been given for such share. the defendants appeal.2. their contention is that the plaintiff is not entitled to a decree even for, that share. it is argued that the plaintiff sued originally for the whole 16 annas share, but is found entitled only to a 4 anna share of the rent, that his co-sharer landlords are not co-plaintiffs nor defendants, that there is no allegation pr proof of any arrangement between the landlords and the tenants that the tenants could pay each co-sharer his proportionate share of the entire rent and that, in the absence of any such arrangement, the suit is not maintainable this contention is supported by the decision of a full.....
Judgment:

Francies W. Maclean, C.J.

1. In this suit the plaintiff claimed the whole 16 annas of the rent. It turned out that, at the most, he was entitled only to a 4 annas share, and a decree has accordingly been given for such share. The defendants appeal.

2. Their contention is that the plaintiff is not entitled to a decree even for, that share. It is argued that the plaintiff sued originally for the whole 16 annas share, but is found entitled only to a 4 anna share of the rent, that his co-sharer landlords are not co-plaintiffs nor defendants, that there is no allegation pr proof of any arrangement between the landlords and the tenants that the tenants could pay each co-sharer his proportionate share of the entire rent and that, in the absence of any such arrangement, the suit is not maintainable This contention is supported by the decision of a Full Bench of this Court, viz., Guni Mahomed v. Moran (1878) I.L.R. 4 Clac. 96 : 2 C.L.R. 371.

3. A suit originally of one nature has been converted into a suit of an entirely different nature. As I have pointed out the plaintiff originally claimed 16 annas of the rent. It was found that he was only entitled to 4 annas: but as there was no arrangement between the co-sharers landlords and the tenants as to the payment to each co-sharer of his proportionate share of the rent, I do not see how the suit can be maintained.

4. In respect to the argument that the question as to the plaintiff's right to receive separately 4 annas of the rent was not put in issue or decided, the answer is that suggested by the learned vakil for the appellant, that the suit being for the whole 16 annas share, it Was incumbent on the plaintiff, in the absence of his co-sharers, to show that he was entitled to the entire 16 annas. The suit is not based on the footing of his only being entitled to 4 annas of the rent. I think, therefore, that the suit must fail and be dismissed with costs throughout, the judgment of the Court of Appeal below being reversed.

Bodilly, J.

5. I concur.

Staley, J.

6. I concur.


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