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(Hafez) Ahmed Yar Khan Vs. Dina Nath Sadhukhan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1925Cal1148,90Ind.Cas.40
Appellant(Hafez) Ahmed Yar Khan
RespondentDina Nath Sadhukhan
Excerpt:
- .....the confirmation of the sale or, under article 12 of the limitation act, it should have been brought within one year again. the answer to that is that the sale was not a sale at all and, therefore, there was no need to bring in a suit to set it aside so that neither provision applies. the suit was brought within much less than 12 years of the date on which possession was given to the purchaser and consequently it is not barred by limitation.3. in my opinion, the decision of the lower court should be affirmed and this appeal dismissed with costs.b.b. ghose, j.4. i agree.
Judgment:

Walmsley, J.

1. This appeal arises out of a sale of a holding situated in dihi Panchanagram. The plaintiff was the owner of a portion of the Holding No. 166. The share of rent which he had to pay was Re. 1-3-9 per annum. The kabuliyat executed in respect of the whole Holding No. lot) is dated the 6th February 1873 According to that, the tenant undertook to pay the agreed rent annually on or before the 28th day of June into the Collectorate. Now, it would be tedious to narrate the facts of the case of Haji Elahi Buksh which led to an alteration in the notification passed under Section 3 of Act XI of 1859. It is enough to record the fact that there has been a change made. 'I he question of what is the latest data has been considered by the learned Judge, but, for the present purpose, I think the only point which we have to consider is what was the date on which the rent of each year was payable to the Collector. It has been urged before us that the stipulation in the kabuliyat means that the rent for 1320 B.S. would be payable by the tenant on the 28th of June 1913. That would be the interpretation which I should have placed on the kabuliyat if it has stood by itself. But the plaintiff has been able to produce a jamawasilbaki kept in the Collector's office containing entries of no less than six years and studying that jamawasilibaki, 1 have come to the conclusion that it was the practice of the Collector to receive the rent of each Bengali year in May or June of the following year that is to say, that the rent of 1320 B.S. would have been accepted if paid in May or June 1914. Now, it that was the practice, then 1 think it follows that the sale held by the Collector was not in accordance with law. The new notification under Section 3 of Act XI cannot apply to the sale, which is the subject master of this suit; and, if the rent for 1320 was not due to be paid into the Collectorate until the 28th of June 1914, it follows by a reference to Section 2 and the old notification that a sale held in the following May was not a good sale. The conclusion, therefore, to which I come is that the learned Judge of the Court below was right in holding as be did that the Sale was not a good sale.

2. The other point which has been argued before us is one of limitation. It is said that the suit is really a suit to set aside a sale held under the provisions of Act XI (B C.) of 1859, and that, under Section 33 of that Act, it should have been brought within one year of the data of the confirmation of the sale or, under Article 12 of the Limitation Act, it should have been brought within one year again. The answer to that is that the sale was not a sale at all and, therefore, there was no need to bring in a suit to set it aside so that neither provision applies. The suit was brought within much less than 12 years of the date on which possession was given to the purchaser and consequently it is not barred by limitation.

3. In my opinion, the decision of the lower Court should be affirmed and this appeal dismissed with costs.

B.B. Ghose, J.

4. I agree.


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