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Girish Chandra Chakrabarty Vs. Girish Chandra Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Tenancy
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal358,52Ind.Cas.501
AppellantGirish Chandra Chakrabarty
RespondentGirish Chandra Roy and ors.
Excerpt:
appeal - fraud, plea of, whether can be raised in appeal--appellate court, duty of. - .....the previous tenants for arrears of rent. in that suit and in subsequent proceedings including a sale-certificate the rent of the holding is shown as rs. 40. the learned subordinate judge has reversed the finding of the munsif that the defendants were liable to pay rent at the rate shown in the sale-certificate on the ground that the jama of rs. 4) was fraudulently inserted in the plaint, decree and the sale-certificate and that the defendants were not bound by the statement of the plaintiff himself when it was found to be fraudulent. no allegation of fraud was made by the defendants at the trial of the suit in the court of first instance, nor was such allegation even made in the grounds of appeal to the lower appellate court. the lower appellate court was not justified in allowing the.....
Judgment:

Newbould, J.

1. This appeal arises out of a suit for rent. The only point for determination is whether the rate of rent is Rs. 40 as alleged by the plaintiff or Rs. 39 as alleged by the defendants. The defendants purchased a tenancy right at an auction sale held in execution of a decree against the previous tenants for arrears of rent. In that suit and in subsequent proceedings including a sale-certificate the rent of the holding is shown as Rs. 40. The learned Subordinate Judge has reversed the finding of the Munsif that the defendants were liable to pay rent at the rate shown in the sale-certificate on the ground that the jama of Rs. 4) was fraudulently inserted in the plaint, decree and the sale-certificate and that the defendants were not bound by the statement of the plaintiff himself when it was found to be fraudulent. No allegation of fraud was made by the defendants at the trial of the suit in the Court of first instance, nor was such allegation even made in the grounds of appeal to the lower Appellate Court. The lower Appellate Court was not justified in allowing the plea of fraud to be raised before it without giving the plaintiff an opportunity of rebuting that plea.

2. The appeal must be decreed, the decree of the lower Appellate Court set aside and that of the first Court restored with costs in the lower Appellate Court.

3. As the respondents did not appear I make no order as to costs in this Court.


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