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Banga Chandra Pal and Syama Charan Pal and ors. Vs. Kailash Chandra Pal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in58Ind.Cas.189
AppellantBanga Chandra Pal and Syama Charan Pal and ors.
RespondentKailash Chandra Pal and ors.
Cases ReferredMohoram Sheikh Chaprasi v. Telamniddin Khan
Excerpt:
appeal, second - plaintiff not given opportunity of meeting case--failure to apply for remand in first appellate court--plaintiff, whether entitled to ask for remand in second appeal--landlord and tenant--tenancy, nature of, determination of--residential tenancy--improvements made by tenant--rent not varied for long time--inference. - .....that the tenancy right described is the written statement as projai right was transferable. the issue framed in the first court took this form: 'had annoda sen the former tenant, a non-transferable right in the land in suit?' this issue is perhaps not very happily framed and perhaps it would have been more correct had the issue run 'whether annoda sen, the former tenants, had a transferable right in the land in suit?' it is quite clear from the judgment of the first court that the plaintiffs were in no way misled by the manner in which the issue was framed. in the conveyance by which annoda transferred his homestead to the defendant, the homestead on the land in question is described as one with ordinary korsa raiyati right of occupancy. this description appears to have been framed.....
Judgment:

1. These appeals arise out of two suits Brought by the respective plaintiff each to recovers 4-anuas share in a certain homestead. It appears that the plaintiffs, the defendant and the plaintiff in third suit in which no appeal has been preferred to this Court are four brothers and hold the superior interest in the land in suit in four equal shares. The homestead in suit adjoins their partitioned homestead. It belonged originally to one Annoda Charan Sen and his tenancy right therein hits been purchased by the defendant Kailash. Plaintiffs then brought these suits 'in order to recover joint possession with Kailash each in 4 annas share. The suits succeeded in substance in the first Court. By the decrees of the first Court the plaintiffs were each required to pay to the defendant a one fourth share of the value of the homestead, In the Court of first appeal it has been held that the tenancy of Annoda Charan Sen in transferable and that the plaintiffs are, therefore, not entitled to take any share in the homestead purchased by the defendant for himself alone. That the homestead of Annoda Charan Sen is transferable is based on the finding that his tenancy is, in fact, a permanent tenancy. In the appeals before us it has been contended on behalf of the appellants that the learned District Judge has, in fact,, decided the appeals on a case not made out in the written statement and a case on which no issue was framed is the Court of first instance, It is quite true that in the written statement it was not distinctly alleged that the tenancy of Annoda Charan Sen was a permanent tenancy, but there was throughout a clear allegation that the tenancy right described is the written statement as projai right was transferable. The issue framed in the first Court took this form: 'Had Annoda Sen the former tenant, a non-transferable right in the land in suit?' This issue is perhaps not very happily framed and perhaps it would have been more correct had the issue run 'whether Annoda Sen, the former tenants, had a transferable right in the land in suit?' It is quite clear from the judgment of the first Court that the plaintiffs were in no way misled by the manner in which the issue was framed. In the conveyance by which Annoda transferred his homestead to the defendant, the homestead on the land in question is described as one with ordinary korsa raiyati right of occupancy. This description appears to have been framed with a view to the provisions of Section 182 of the Bengal Tenancy Act, and the contention of the appellants before as then is that in trying the issue that had been framed the defendant should have been confined to the question whether this occupancy holding was transferable by local custom or usage. But it is clear from the evidence that was given in the suits that the description given in the conveyance was a misdescription. Annoda Charan Sen, the vendor, was not, in fact, a raiyot. He was a Kabiraj and service holder. The land sold is exclusively homestead, and on the evidence that was given, the Judges in both the Courts below having this conveyance before them have properly come to the conclusion that this holding or homestead is sot governed by the provisions of the Bengal Tenancy Act but by the law which was in force with respect to homesteads before the enactment of the Transfer of Property Act. On the evidence that was given the Court of first instance found that Annoda's tenancy was created more than sixty years before suit and that it was created for residential purposes. It is also found that it was inherited by Annoda Charan Sen from his father. The judgment further shows that in the Court of first instance the defendant urged the very question upon which the case has been decided in the Court of first appeal. In the Munsif's judgment we find this passage: 'The learned Pleader for the defendant urges that the tenancy should be held as transferable considering the fact that it was inherited by Annoda Sen from his father.' Thus when the matter went up to the Court of first appeal the plaintiffs knew exactly what case they had to meet, and if they thought that they had not had a sufficient opportunity of meeting that case they should in that Court have applied for the framing of a distinct issue on the question whether the tenancy in question was, in fact, a permanent tenancy' and for a remand to the Court of first instance for the purport' of determining that issue. They did not, in fact, make any such application, and as they did not do so in the Court of first appeal, we are of opinion that it is now too late for them to ask this Court to direct the framing of an issue and a remand for the purpose of enabling the parties to adduce further evidence on an issue thus framed. The facts, as found by the Court of first appeal, are that the origin of this tenancy is unknown, that the Original tenant and his successor have been in occupation for over sixty years, that during those sixty years the rent did not vary, that the tenancy was treated by the landlords as heritable and that it was a tenancy for residential purposes. The learned District Judge further finds that substantial improvements to the homestead were effected by the tenants by the formation of a valuable orchard of fruit trees. On these findings of fact, he comes to the conclusion that the tenancy is permanent and, therefore, transferable, and in support of this view he refers to the case of Mohoram Sheikh Chaprasi v. Telamniddin Khan 13 Ind. Cas. 606 : 15 C.L.J. 220 : 16 C.W.N. 567. On his findings of fact, it was clearly open to him to draw the inference that this tenancy was a permanent tenancy and we cannot say, from the facts found, that he hap, as a matter of fact, come to a wrong inference in point of law. For these reasons, these appeals must be dismissed with costs.


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