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Hurro Doyal Roy Chowdhry Vs. Mahomed Gazi Chowdhry and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1892)ILR19Cal699
AppellantHurro Doyal Roy Chowdhry
RespondentMahomed Gazi Chowdhry and ors.
Cases ReferredMahomed Zamir v. Abdul Hakim
Excerpt:
putni taluk - sale of putni tenure for arrears of rent--bengal regulation viii of 1819, section 8, clause 2--onus of proof of publication of notice before sale of putni taluk for arrears of rent--notice of sale of putni taluk, onus of proof of publication of--suit to set aside sale. - .....the ground that the sale was invalid, and his case is that the sale was invalid by reason of the notices required by sub-section 2, section viii, not having been proved. the courts have held that there is no evidence one way or another as to the service of such notices. the plaintiff says that in the absence of such evidence the case must be decided in his favour. the defendant says that it lies on the plaintiff to prove that such notices were not served, and unless that is proved the defendant is entitled to a decision in his favour upon that issue. we think that the decisions of their lordships of the privy council in the case of maharajah of burdwan v. tarasundari dehi i.l.r. 9 cal. 619; l. r. 10 i.a. 19 and particularly the passage at p. 624 of that report, and also the case of.....
Judgment:

Pigot and Macpherson, J.

1. In this case the appellant brings a suit to set aside the sale of a putni under Regulation VIII of 1819, on the ground that the sale was invalid, and his case is that the sale was invalid by reason of the notices required by Sub-section 2, Section VIII, not having been proved. The Courts have held that there is no evidence one way or another as to the service of such notices. The plaintiff says that in the absence of such evidence the case must be decided in his favour. The defendant says that it lies on the plaintiff to prove that such notices were not served, and unless that is proved the defendant is entitled to a decision in his favour upon that issue. We think that the decisions of their Lordships of the Privy Council in the case of Maharajah of Burdwan v. Tarasundari Dehi I.L.R. 9 Cal. 619; L. R. 10 I.A. 19 and particularly the passage at p. 624 of that report, and also the case of Mahomed Zamir v. Abdul Hakim (I. L.R. 12 Cal. 67) decided in this Court, in which that Privy Council case is referred to, establish the proposition that in such a case it lies upon the defendant to show that the sale was preceded by the notices required by Section 8, Clause 2, the service of which notices is an essential preliminary to the validity of the sale.

2. We therefore allow the appeal, set aside the decree of the Lower Court, and decree the suit with costs of this appeal and in the Lower Courts.


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