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Ambika Pershad Vs. Chowdhry Keshri Sahai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1897)ILR24Cal642
AppellantAmbika Pershad
RespondentChowdhry Keshri Sahai and ors.
Excerpt:
right of occupancy - transfer of right--suit for registration of name in landlord's serishta--right of suit--notice--tenancy act (viii of 1885), section 73. - .....the landlord of the jote, and who seeks to have it declared that he is entitled to have his name registered in the serishta of defendant no. 1, and to have the name of defendant no. 3, his transferor, expunged.2. the lower courts have gone into the merits of the case, and they have dismissed the suit, on the ground that the plaintiff has not established his purchase of the jote in question against defendant no. 3.3. the only point found in favour of the plaintiff is that the jote is a transferable one. the plaintiff now appeals to this court and impugns the finding of the lower appellate court. we do not, however, think it is necessary to enter into the merits of this case, as it appears to us that the suit is not maintainable under the provisions of the bengal tenancy act. the.....
Judgment:

Rampini, J.

1. This is a suit brought by a person who alleges that he is the transferee of an occupancy holding against the landlord of the jote, and who seeks to have it declared that he is entitled to have his name registered in the serishta of defendant No. 1, and to have the name of defendant No. 3, his transferor, expunged.

2. The lower Courts have gone into the merits of the case, and they have dismissed the suit, on the ground that the plaintiff has not established his purchase of the jote in question against defendant No. 3.

3. The only point found in favour of the plaintiff is that the jote is a transferable one. The plaintiff now appeals to this Court and impugns the finding of the Lower Appellate Court. We do not, however, think it is necessary to enter into the merits of this case, as it appears to us that the suit is not maintainable under the provisions of the Bengal Tenancy Act. The plaintiff is, on his own showing, an occupancy raiyat. He is not a permanent tenure-holder, nor a raiyat holding at a fixed rate, but is merely a raiyat with a right of occupancy, which the Lower Appellate Court has found to be transferable.

4. Under these circumstances we think that he is not entitled to the relief asked for, viz., to have his name registered in his landlord's serishta, and to have the name of defendant No. 3 expunged.

5. The lower Courts have apparently overlooked the fact that such a suit is not maintainable under the Bengal Tenancy Act. It is no longer compulsory for the zemindar to register the names of any tenants in his serishta. The Act provides for the official registration of transfers of the rights of permanent tenure-holders and raiyats holding at fixed rates. But the transfers of occupancy rights are not so registered, and there is no provision of law by which they can be registered in the landlord's serishta. When occupancy rights, transferable by custom, have been transferred, it is no doubt open to the transferees to sue under the Specific Relief Act to have it declared that they have acquired certain rights; but it is clear that if it is the object of such a suit, as it apparently was of this suit, to have it declared that the old tenant is no longer responsible for the rent, and that the transferee is so responsible to the landlord, such a declaration cannot be obtained without the service of the notice prescribed by Section 73. Now, it is not alleged in this case that any such notice was served, and this would seem to be a further reason for dismissing this suit. However this may be, it is plain that it must be dismissed on the ground that the suit, as brought, is not maintainable under the provisions of the present law.

6. We, therefore, dismiss the appeal with cost.


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