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Fazarali Mahaldar and ors. Vs. Poroo Mian and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in48Ind.Cas.300
AppellantFazarali Mahaldar and ors.
RespondentPoroo Mian and anr.
Cases ReferredAbdul Rahman Choudhuri v. Ahmadar Rahman
Excerpt:
bengal tenancy act (viii of 1885), section 161(a) - in-cumbrance, meaning of--interest of purchaser of portion of tenancy, whether incumbrance. - .....landlords and they purchased the land in execution of a rent decree obtained by them against their tenant bandia bewa. it is said that bandia bewa had sold 5 cottahs of the land to defendant no. 2. the question is whether that creates an incumbrance which the purchasers would have to annul. ' the learned subordinate judge relied upon the case of chundra sakai v. kalli prosanno chuckerbutty 23 c. 254 : 12 ind. dec. (n.s.) 176 and held that it was an incumbrance. he also referred to the case of jogeshwar mozumdar v. abed mahomed sirkar 3 c.w.n. 13. those cases, however, have been distinguished in more recent cases. in tmizuddin khan v. khoda nawaz khan 5 ind. cas. 116 : 11 c.l.j. 16 : 14 c.w.n. 229 the case last cited was distinguished and it was held that an incumbrance must imply a.....
Judgment:

1. This is an appeal by the plaintiffs arising out of a suit brought to recover a plot of land measuring 1 bigha 14 cottahs. Plaintiffs were the landlords and they purchased the land in execution of a rent decree obtained by them against their tenant Bandia Bewa. It is said that Bandia Bewa had sold 5 cottahs of the land to defendant No. 2. The question is whether that creates an incumbrance which the purchasers would have to annul. ' The learned Subordinate Judge relied upon the case of Chundra Sakai v. Kalli Prosanno Chuckerbutty 23 C. 254 : 12 Ind. Dec. (N.S.) 176 and held that it was an incumbrance. He also referred to the case of Jogeshwar Mozumdar v. Abed Mahomed Sirkar 3 C.W.N. 13. Those cases, however, have been distinguished in more recent cases. In Tmizuddin Khan v. Khoda Nawaz Khan 5 Ind. Cas. 116 : 11 C.L.J. 16 : 14 C.W.N. 229 the case last cited was distinguished and it was held that an incumbrance must imply a limitation of the rights of the tenant and not a total extinction of them. In the case of Abdul Rahman Chowdhuri v. Ahmadar Rahman 31 Ind. Cas. 554 : 22 C.L.J. 356 : 19 C.W.N. 1217 : 43 C. 558 the same view was taken. That was a case of sale of a portion of a putni tenure; but otherwise it was indistinguishable from the present-case. We think that these recent decisions should be followed and that the judgment of the learned Subordinate Judge cannot be supported. The most recent case of Abdul Rahman Choudhuri v. Ahmadar Rahman 31 Ind. Cas. 554 : 22 C.L.J. 356 : 19 C.W.N. 1217 : 43 C. 558 does not seem to have been brought to his notice. We accordingly allow the appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs in this Court and in the lower Appellate Court.


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