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NobIn Chand Nuskar Vs. Bansenath Paramanick - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1894)ILR21Cal722
AppellantNobIn Chand Nuskar
RespondentBansenath Paramanick
Excerpt:
bengal tenancy act, 1885, section 3, clause 5, 65, 161 - sale of tenure for arrears of road cess under decree--'rent'--road cess--cesses--incumbrance by defaulting tenant, effect of sale in execution of decree for road cess on. - .....for cess was a sale of the tenure under chapter xiv, and the purchaser at that sale acquired the property free from the incumbrance created by the former tenant in favour of the plaintiff, it not being a registered and notified incumbrance within the meaning of section 161 of the act.3. as regards the question discussed before us, that no notice was served upon the plaintiff so as to avoid the incumbrance in question, it was not raised in either of the lower courts. we cannot assume, in the absence of facts, that no notice was given to the plaintiff. if the question had. been raised, the defendant might have been able to show that such a notice was served on the plaintiff.4. the appeal will be dismissed with costs.
Judgment:

Ghose, J.

1. (Petheram, C.J., concurring).-We are of opinion that Mr. Justice Rampini is right in the conclusion which he has arrived at.

2. Chapter XIV of the Bengal Tenancy Act must, we think, he read with Section 65 of the Act; and the word 'rent' as used in that section includes, by reason of the definition given in Clause 5 of Section 3, road cess payable to the landlord by the tenant. That being so the sale in execution of the decree obtained by the landlord for cess was a sale of the tenure under Chapter XIV, and the purchaser at that sale acquired the property free from the incumbrance created by the former tenant in favour of the plaintiff, it not being a registered and notified incumbrance within the meaning of Section 161 of the Act.

3. As regards the question discussed before us, that no notice was served upon the plaintiff so as to avoid the incumbrance in question, it was not raised in either of the lower Courts. We cannot assume, in the absence of facts, that no notice was given to the plaintiff. If the question had. been raised, the defendant might have been able to show that such a notice was served on the plaintiff.

4. The appeal will be dismissed with costs.


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