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Brojo Kishore Singh Vs. Bharrut Singh Mohaputtur - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata
Decided On
Judge
Reported in(1879)ILR4Cal963
AppellantBrojo Kishore Singh
RespondentBharrut Singh Mohaputtur
Excerpt:
kabuliat, suit for. - .....dismissing this suit.2. the mere fact that the defendant, in ignorance of his rights, allowed the local investigation to proceed, and the rates to be ascertained by an ameen without objection, does not in my opinion raise any distinction between this case and the cases relied on by the judicial commissioner.3. the local investigation was made to enable the court to decide whether the rent claimed by the plaintiff was a fair and equitable rent such as the court could by its decree impose. if the result of the investigation was to satisfy the court that the rent, claimed was not the rent fairly payable, the plaintiff's suit would rightly be dismissed.4. from that enquiry the plaintiff may or may not derive benefit in future litigation, but he cannot succeed on his present plaint, as his.....
Judgment:

Birch, J.

1. I think that the Lower Appellate Court, upon the authority of the cases cited in its judgment was right in dismissing this suit.

2. The mere fact that the defendant, in ignorance of his rights, allowed the local investigation to proceed, and the rates to be ascertained by an ameen without objection, does not in my opinion raise any distinction between this case and the cases relied on by the Judicial Commissioner.

3. The local investigation was made to enable the Court to decide whether the rent claimed by the plaintiff was a fair and equitable rent such as the Court could by its decree impose. If the result of the investigation was to satisfy the Court that the rent, claimed was not the rent fairly payable, the plaintiff's suit would rightly be dismissed.

4. From that enquiry the plaintiff may or may not derive benefit in future litigation, but he cannot succeed on his present plaint, as his claim is shown to be unfounded.

5. The special appeal is dismissed with costs.

Mitter, J.

6. I concur. I was inclined to hold that, having regard to the proceedings taken in the Court of first instance, the defendant should be considered to have waived his objection regarding the previous tender of a potta at the enhanced rate decreed in the lower Court. But as my learned colleague is of a different opinion, and as this case is not distinguishable from the authorities on which the lower Appellate Court relies, and as the present suit has been dismissed on a ground which would not preclude the plaintiff from asserting the same right in another suit framed in a different way, I agree to the special appeal being dismissed with costs.


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