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Kailas Chandra Aich and anr. Vs. Romesh Chandra Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in32Ind.Cas.355
AppellantKailas Chandra Aich and anr.
RespondentRomesh Chandra Sen and ors.
Excerpt:
bengal tenancy act (viii of 1885), section 87 - non-transferable occupancy holding, abandonment of, by sale--landlord's right of re-entry--abandonment, finding of--second appeal. - .....but failed. then on the 3rd february 1912 the plaintiffs took a miras-ijara of the 10 bighas of land. the landlord stated that he had not been informed when the original tenants had sold their rights and that the purchaser had not taken any settlement from him. on the 23rd february 1912, this suit was brought against the purchasers for ejectment on the ground that the holding had been abandoned by the original tenants. three days after that, that is on the 26th of february 1912, there was a deed of release executed by the purchasers in favour of defendants nos. 4 and 5 and defendants nos. 4 and 5 were brought on the record as defendants in april 1912. the first court gave a decree for a declaration that the plaintiff was entitled to rent from defendants nos. 4 and 5 who were in.....
Judgment:

D. Chatterjee, J.

1. The facts of this case are shortly stated as follows: Defendants Nos. 4 and 5 were occupancy tenants in respect of. 10 bighas of land. (sic) rights in that part of the country are not transferable by custom. Defendants Nos. 4 and 5 sold their occupancy rights to defendants Nos. 1 to 3 in 1910. Defendants Nos. 1 to 3 attempted to obtain recognition of the landlord but failed. Then on the 3rd February 1912 the plaintiffs took a miras-ijara of the 10 bighas of land. The landlord stated that he had not been informed when the original tenants had sold their rights and that the purchaser had not taken any settlement from him. On the 23rd February 1912, this suit was brought against the purchasers for ejectment on the ground that the holding had been abandoned by the original tenants. Three days after that, that is on the 26th of February 1912, there was a deed of release executed by the purchasers in favour of defendants Nos. 4 and 5 and defendants Nos. 4 and 5 were brought on the record as defendants in April 1912. The first Court gave a decree for a declaration that the plaintiff was entitled to rent from defendants Nos. 4 and 5 who were in possession under the release. The Court of Appeal below has set aside that decree and has given a decree for ejectment. The appeal before us is on the ground that upon the facts found there was no abandonment and, therefore, the decree for ejectment cannot be sustained. We think that this contention is not right. There was a sale and the learned Subordinate Judge has found that defendants Nos. 4 and 5 did not pay any rent after the transfer and refused to pay. He also found that there was an abandonment by defendants Nos. 4 and 5 of their holding, if there was an abandonment, then the landlord had a right to re-enter and such light has been transferred to the plaintiffs by the miras-ijara. The contention that the landlord did not contemplate a transfer of his right of re-entry, does not appear to be supported by the document. It is further contended that the pendency of the negotiation with the landlord is evidence that the landlord did not treat the holding as abandoned. That, however, is negatived by the terms of the miras-ijara and I think that the finding of the learned Subordinate Judge on the question of abandonment, arrived at on evidence on the record, is one that cannot be assailed in second appeal.

2. The case seems, no doubt, to be a hard one (sic) chose to make an out and out sale, refused to pay rent and went out of possession of the land until the vendees, finding it impossible to obtain recognition, rendered back the land to them.

3. In this view of the case the appeal is dismissed with costs.

Beachcroft, J.

4. I agree.

5. A strong appeal was made to our sympathy by the learned Vakil for the appellants. A bare recital of the facts would seem to suggest that his appeal was well founded. But a reference to the deed of release and the written-statement, in which it was stated with the most engaging cynicism that the original transfer was made with the object of defeating the appellants' creditors, robs the appellants of any claim to our sympathy.


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