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Ashutosh Choudhury Vs. Ali Sheikh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal763
AppellantAshutosh Choudhury
RespondentAli Sheikh and ors.
Excerpt:
- .....the defendants, which shows that the defendants are the owners of the land and they are liable to ashutosh choudhury. the figure (2) before ashutosh choudhury shows that the khatian 2 represents the interest of ashutosh choudhury. khatian 2 is ex. 1 in the case. (after stating the entry in the khatian in bengali, their lordships proceeded). from this it is urged by the learned advocate for the respondent that ashutosh is the dakhalikar but not the shebait. he cannot explain who then is the shebait of the thakur.2. the real meaning of the bengalee words is clearly that ashutosh choudhury dakhalikar is the shebait of the thakur. if some other person was the shebait his name would have been put down there. the plaintiff is clearly entitled to a decree. it was urged that no appeal lay under.....
Judgment:

M.C. Ghose, J.

1. This is an appeal by the plaintiff in a suit for arrears of rent and for enhancement of rent. The 1st Court found that the plaintiff sued as shebait of a certain idol but that Ex. 1-a showed that the defendants held the jama under him personally and that the rent is to be paid to him personally. As he sued as a shebait of an idol the first Court dismissed the suit. As to the question of enhancement the 1st Court held on the evidence that the enhancement should have been by one and half anna per rupee from the year 1340 B.S. The plaintiff appealed against the dismissal of the suit. The Court of appeal below held that the plaintiff having sued as a shebait he being really the dakhalikar his suit could not succeed. Upon hearing the learned Advocates on both sides it appears that the Courts below misread the settlement record Ex. 1-a the record of the defendants, which shows that the defendants are the owners of the land and they are liable to Ashutosh Choudhury. The figure (2) before Ashutosh Choudhury shows that the khatian 2 represents the interest of Ashutosh Choudhury. Khatian 2 is Ex. 1 in the case. (After stating the entry in the Khatian in Bengali, their Lordships proceeded). From this it is urged by the learned Advocate for the respondent that Ashutosh is the dakhalikar but not the shebait. He cannot explain who then is the shebait of the Thakur.

2. The real meaning of the Bengalee words is clearly that Ashutosh Choudhury dakhalikar is the shebait of the Thakur. If some other person was the shebait his name would have been put down there. The plaintiff is clearly entitled to a decree. It was urged that no appeal lay under Section 153. The argument is not correct, as the defendant denied the title of the plaintiff and also the plaintiff had applied for enhancement. The plaintiff's suit should be decreed as regards the arrears claimed by him. On the question of enhancement the learned District Judge came to no finding at all. Upon hearing the learned Advocate it appears that an enhancement is due according to the Bengal Tenancy Act. Considering the depressed state of the market enhancement is allowed at 1 anna in the rupee from the year 1340 B.S. The appeal is allowed. The plaintiff-appellant will get his costs in all the Courts. In view of the decision in the appeal no separate order is necessary on the application. B.D.


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