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Peary Mohun Choudhury Vs. Rasik Chandra Dhubi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in58Ind.Cas.543
AppellantPeary Mohun Choudhury
RespondentRasik Chandra Dhubi and ors.
Cases Referred and Asmat Ali v. Hasmat Khan
Excerpt:
bengal land revenue sales act (vii of 1868), section 12, clause (4), operation of, scope of - tenure on which permanent tanks have been built, protection of. - .....of his right to receive rent. on appeal the subordinate judge decreed the claim for ejeatment. mr. justice newbould has reversed that decision and restored the decree of the court of first instance. we are of opinion that the decree made by mr. justice newbould is correct, though not for the reasons assigned by him.2. the nature of the title of a purchaser of a tenure sold under the provisions of act vii of 1868 (b.c.) is defined in section 12 which lays down that such a purchase r becomes entitled to avoid and annul all under-tenures and forthwith to eject all under tenants with certain exceptions. one of these exceptions embodied in clause (4) is 'tenures of lands whereon dwelling houses, manufactories or other permanent buildings have been erected or whereon permanent gardens,.....
Judgment:

Asutosh Mookerjee, C.J.

1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. justice Newbould in a suit for ejectment instituted by a purchaser at a sale held under Act VII of 1868 (B.C.). The Court of first instance refused to decree ejectment, but gave the plaintiff a declaration of his title and of his right to receive rent. On appeal the Subordinate Judge decreed the claim for ejeatment. Mr. justice Newbould has reversed that decision and restored the decree of the Court of first instance. We are of opinion that the decree made by Mr. justice Newbould is correct, though not for the reasons assigned by him.

2. The nature of the title of a purchaser of a tenure sold under the provisions of Act VII of 1868 (B.C.) is defined in Section 12 which lays down that such a purchase r becomes entitled to avoid and annul all under-tenures and forthwith to eject all under tenants with certain exceptions. One of these exceptions embodied in Clause (4) is 'tenures of lands whereon dwelling houses, manufactories or other permanent buildings have been erected or whereon permanent gardens, plantations, tanks, canals, places of worship or burning or burying grounds have been made.' In the present case, the purchaser seeks to avoid and annul a tenure of land on which permanent tanks have been made, His contention is that before his title can be restricted, it must be established that the tanks were made either by the tenure-holders or by their predecessors-interest. We are not prepared to accept this construction of the section. If the Legislature had intended to restrict the operation of the clause in the manner suggested, suitable words might have been inserted for the purpose. Reference has been made to the decisions in Ajgur Ali v. Asmut Ali 8 C. 110 : 10 C.L.R. 87 : 4 Ind. Dec. (N.S.) 70 and Asmat Ali v. Hasmat Khan 2 C.W.N. 412 but neither of these cases has a direct bearing upon the question we are called upon to decide.

3. The result is that this appeal is dismissed with costs.

Fletcher, J,

4. I agree


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