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Midnapore Zemindari Co. Ltd. Vs. Shib Narayan Dutta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal137
AppellantMidnapore Zemindari Co. Ltd.
RespondentShib Narayan Dutta and ors.
Cases ReferredRam Narain v. Poolin Behari
Excerpt:
- .....of the patnidars and dar patnidar in the mehal in the year 1918 and they have brought this suit for rent in february 1921. what the plaintiffs alleged in answer to the defence of the defendants was that the lands which, the defendants say, appertained to mouzah monoharpur really appertained to their mouzah called nishchindipur. that has been found against them by the subordinate judge and this finding must be accepted by us as a finding of fact. the question, however, that remains to be decided is whether the defendants are entitled to any abatement of rent for the lands which the lower appellate court has found to be within their mouzah but of which they are not shown to have ever been in possession. although the defendants have never been in possession of the lands, they have.....
Judgment:

1. This appeal arises out of a suit for rent brought for a sepatni mehal called Monoharpur. The plea of the defendants was that the entire rent should be suspended on account of the plaintiffs having failed to deliver possession of certain portions of the lands demised. This plea found favour with the Munsif who dismissed the entire suit. The plaintiffs appealed against that decree and the Subordinate Judge has made a partial decree in favour of the plaintiffs by allowing an apportionment of the rent of the lease hold properties in proportion to the lands found in possession of the defendants. This case is a rather peculiar one. It appears that the predecessors-in-interest of the plaintiffs created the sepatni lease in question of the mouzah called Monoharpur in the year 1857. The sepatnidars gave an ijara of the properties to their landlords in 1866. The ijara was to last for 15 years. In 1867 the original sepatnidars sold their interest to the defendant's predecessors. Prom 1867 the predecessors of the defendants, and after them the defendants, have been in possession of the sepatni mehal by paying the rent reserved in the lease till the arrears claimed in the suit. The plain tiffs purchased the interest of the patnidars and dar patnidar in the mehal in the year 1918 and they have brought this suit for rent in February 1921. What the plaintiffs alleged in answer to the defence of the defendants was that the lands which, the defendants say, appertained to mouzah Monoharpur really appertained to their mouzah called Nishchindipur. That has been found against them by the Subordinate Judge and this finding must be accepted by us as a finding of fact. The question, however, that remains to be decided is whether the defendants are entitled to any abatement of rent for the lands which the lower appellate Court has found to be within their mouzah but of which they are not shown to have ever been in possession. Although the defendants have never been in possession of the lands, they have been paying the entire rent reserved in the kabuliyat for more than 60 years before suit. Under what circumstances the lands continued to remain in the possession of the landlords it is very difficult to find out. The inference from this long submission of the defendants to be kept out of possession of these lands while they were paying the full rent would lead to an inference that these lands were never meant to be given to the defendant's predecessors.

2. However that may be, as was observed in the case of Ram Narain v. Poolin Behari 2 C.L.R. 5, we must hold that the right of the defendants to ask for abatement of rent after the lapse of 60 years must be considered to have been lost by acquiescence and laches. Whether the defendants are entitled to the lands in question as appertaining to their leasehold, or whether they have any substantive right which they can enforce by suit as against the landlords for recovery of possession of these lands by reason of successive acknowledgments of the title of the defendants by the plaintiffs-landlords, are questions which do not arise for consideration in this case. If the defendants have such a right they must enforce it by taking proper steps. It is sufficient for us to say in this case that the right to claim abatement must, under the circumstances of the case, be considered to have been lost by defendant's laches and long acquiescence.

3. In this view, this appeal must be allowed and the plaintiffs' suit decreed with costs in all the Courts.

4. The cross-objection has not been pressed and it is dismissed without costs.


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