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Hari Mahanti and ors. Vs. Patit Shahu - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal789
AppellantHari Mahanti and ors.
RespondentPatit Shahu
Cases ReferredSee Sham Chand Kundu v. Brojonath Pal Chowdhry
Excerpt:
landlord and tenant - safe of tenure for arrears of rent--act x of 1859--non-attachment and non-publication of sale proclamation--civil procedure code (act xiv of 18s2), section 311--non-registration of purchase in the landlord's sherishta. - .....chand kundu v. brojonath pal chowdhry (1874) 12 b.l.r. 384: 21 w.r., 94.8. their suit should therefore be dismissed.9. for these reasons we decree this appeal and dismiss the plaintiffs' suit.10. this order carries costs in all courts.
Judgment:

Rampini and Pratt, JJ.

1. In this suit the plaintiffs sue to have it declared (1) that a sale under Act X of 1859 of a certain under-tenure, at which the defendant No. 1 purchased it, be declared null and void; (2) that the plaintiffs have a good title to the tenure; (3) and that their possession of the same be confirmed.

2. The tenure originally belonged to the defendant No. 2, who sold portions of it to defendant No. 3, and the father of defendant No. 4. The plaintiffs subsequently purchased it for Rs. 475, but they never got their names registered in the landlord's sherishta.

3. The landlord, who is the Raja of Puri, then sued the original tenant, defendant No. 2, got a decree, and in execution put the tenure up to sale, at which it was bought by defendant No. 1. Hence this suit.

4. The First Court found (1) that the plaintiffs were not entitled to a declaration of their right by purchase, for they had not registered their names in the landlord's sherishta; (2) that the sale, at which the defendant No. 1 purchased was invalid (3) that the plaintiffs were not entitled to a decree for confirmation of possession; and (4) that the plaintiffs could not be declared entitled to pay the decree for rent, which the defendant No. 5 had obtained against the defendant No. 2.

5. The defendant No. 1 appealed to the District Judge. Before him it seems to have been argued that the sale under Act X of 1859 was a good sale, but the Judge considered it to be null and void (1) because the sale proclamation had not been duly published; (2) because the decree was one obtained by a co-sharer, and should, therefore, have been executed in the mode prescribed by the Civil Procedure Code, and as there was no attachment in this case, the sale would seem to be invalid on that ground also.

6. The defendant No. 1 appeals, and on his behalf it has been contended that the want of attachment and sale proclamation are mere irregularities, which do not vitiate the sale, We are inclined to take this view of the matter. The non-attachment and the non-proof of publication of the sale proclamation might be very serious matters, if this were an application under Section 311 of the Civil Procedure Code. But this is not such an application, and we do not think that the plaintiffs can have the sale set aside on the ground of such irregularities. There is no provision in Act X of 1859 which entitles them to have the sale set aside on such grounds.

7. But there is a more serious objection to the suit, and that is that on the Munsif's findings the plaintiffs are nobodies. The Munsif has refused them the declaration sought for by them as to their title by purchase. The plaintiffs have been held not to be tenants of the land, for they have not registered their names in the landlord's sherishta and have not been recognized by him. They have, therefore, no locus standi and no right to impugn the defendant's purchase of the jote. See Sham Chand Kundu v. Brojonath Pal Chowdhry (1874) 12 B.L.R. 384: 21 W.R., 94.

8. Their suit should therefore be dismissed.

9. For these reasons we decree this appeal and dismiss the plaintiffs' suit.

10. This order carries costs in all Courts.


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