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Abdul Hakim Vs. Annada Prosad Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1928Cal669
AppellantAbdul Hakim
RespondentAnnada Prosad Sen and ors.
Cases Referred and Sital Chandra v. Parbati Charan A.I.R.
Excerpt:
- .....occupancy holding on, the allegation of an abandonment thereof, by the tenant. it appears that the tenant mortgaged the entire holding in favour of defendant 1, the appellant before us in the year 1907. in 1911 the plaintiff landlord brought a, suit for arrears of rent against the tenant and obtained a decree and in execution thereof he himself purchased the holding on 8th july 1913. after this purchase plaintiff settled the land with the pro forma defendant but the pro forma defendant, on failing to obtain possession of the land from defendant 1, surrendered the holding to the plaintiff. this was in 1918. before 1918 defendant had brought a suit on his mortgage in the year 1915 and obtained a decree in the same year and in execution of his mortgage decree put up the mortgaged property.....
Judgment:

Mallik, J.

1. This appeal arises put of a suit brought by the landlord to recover possession of a non-transferable occupancy holding on, the allegation of an abandonment thereof, by the tenant. It appears that the tenant mortgaged the entire holding in favour of defendant 1, the appellant before us in the year 1907. In 1911 the plaintiff landlord brought a, suit for arrears of rent against the tenant and obtained a decree and in execution thereof he himself purchased the holding on 8th July 1913. After this purchase plaintiff settled the land with the pro forma defendant but the pro forma defendant, on failing to obtain possession of the land from defendant 1, surrendered the holding to the plaintiff. This was in 1918. Before 1918 defendant had brought a suit on his mortgage in the year 1915 and obtained a decree in the same year and in execution of his mortgage decree put up the mortgaged property to sale and purchased it on 13th November 1916. Plaintiff's claim to recover possession of the raiyati holding was resisted by defendant 1 on the allegation that defendant 1 having purchased the raiyati holding in execution of his mortgage decree could not be ousted by the plaintiff. This defence found favour with the trial Judge and the trial Judge dismissed the plaintiff's suit. On appeal, the lower appellate^ Court reversed the decision of the trial Judge and gave a decree to the plaintiff for khas possession of the lands in suit. Defendant 1 has appealed to this Court.

2. As observed before, the plaintiff claim for possession was based on an abandonment by the tenant. The question is whether the circumstances in the case were sufficient to make out a case of abandonment. We are of the opinion that they were. It is true that so long as the mortgage in favour of defendant subsisted, there could not be an abandonment because even after the mortgage the tenant retained in himself some interest in the property, namely, the right of redemption. But when the defendant 1 obtained a mortgage-decree and in execution of that mortgage-decree purchased the holding, there, after his purchase, remained no interest left in the tenant. The learned advocate for the appellant drew our attention to the cases in Pran Krishna Pal v. Atul Krishna (1918) 22 C.W.N. 662 and Sital Chandra v. Parbati Charan A.I.R. 1922 Cal. 32. But in both these cases the mortgage was not in respect of the entire property but in respect of a portion only and so, even after the sale in execution of the mortgage decree on the basis of a mortgage of a portion of the property only, the tenant could not be said to have parted with the whole of his interest therein. We are, therefore, of opinion that the facts established in the case were sufficient to make out a case of abandonment, and if there was an abandonment the plaintiff landlord was entitled to a decree for khas possession.

3. We are, therefore, unable to interfere with the decree which the learned District Judge has made in the case. The appeal is, accordingly, dismissed with costs.

Garlick, J.

4. I agree.


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