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Jotendra Nath Chakrabarti and ors. Vs. Gobinda Chandra Chakrabarti and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in57Ind.Cas.813
AppellantJotendra Nath Chakrabarti and ors.
RespondentGobinda Chandra Chakrabarti and ors.
Cases ReferredDayamoyi v. Ananda Mohan Rai
Excerpt:
landlord and tenant - occupancy holding, non-transferable, purchase of, by some co-sharer landlords in execution of rent decree--repudiation of tenancy--other co-sharer landlords, rights of. - .....case it appears that the plaintiffs and defendants are cosharer owners of a certain howla : the original plaintiffs owning 9 annas and the original defendants 7 annas. the defendants nos.1 to 6, who are the owners of 7 annas share in the howla, sued for and obtained a decree for their share of the rent of a non-transferable occupancy holding. in execution of that decree they pnrohased the right, title and interest of the tenants. this purchase took place on the 20th july 1897 and upto this time the original tenants have taken no steps to have the sale set aside.2. the plaintiffs in the present suit sued to; obtain khas possession of their share of the holding in question. it has been found by the courts below that the heirs of the original tenant hisabdi are now in possession only of.....
Judgment:

1. In this case it appears that the plaintiffs and defendants are cosharer owners of a certain Howla : the original plaintiffs owning 9 annas and the original defendants 7 annas. The defendants Nos.1 to 6, who are the owners of 7 annas share in the Howla, sued for and obtained a decree for their share of the rent of a non-transferable occupancy holding. In execution of that decree they pnrohased the right, title and interest of the tenants. This purchase took place on the 20th July 1897 and upto this time the original tenants have taken no steps to have the sale set aside.

2. The plaintiffs in the present suit sued to; obtain khas possession of their share of the holding in question. It has been found by the Courts below that the heirs of the original tenant Hisabdi are now in possession only of the homestead portion of the holding and that all the agricultural lands are in the possession of defendants Nos. 1 to 6 through yearly tenants. It has further been found that though the original tenant or his heirs paid the plaintiffs rent upto 1316, yet in 1317 they declined to pay rent to the plaintiffs and repudiated as between the plaintiffs and themselves any relationship of landlord and tenant. It has also been found that they have accepted sub tenancies under defendants Nos. 1 to 6 and they are in possession as sub tenants of these defendants, On these fasts the learned Subordinate Judge has given a decree for ejectment of all the defendants and for khas possession to the plaintiffs jointly with defendants Nos. 1 to 6 in accordance with their share.

3. In appeal it is contended by the learned Vakil appearing on behalf of the appellants that this decision is contrary to the many oases which have laid down that the mere denial of the landlord's title does not work a forfeiture. But this case is to be distinguished from those oases: here the original tenants have transferred their interest, while in those oases there is no suggestion of any such transfer, that is to say, those cases contemplate denial of the landlord's title by a defendant whose right as a tenant remained unimpaired. The facts of the present case are, we think, not to be distinguished from the facts found or indicated in the oases reported as, Kali Charan Ghose v. Arman Bibi 4 Ind. Cas. 473 : 13 C.W.N. 220 : 5 M.L.T. 276, Separjan v. Ramdeb Rai 55 Ind. Cas. 360 : 24 C.W.N. 117, Kallinath Chakravarti v. Upendra Chunder Chowdhury 24 C. 212 : 1 C.W.N. 163 : 12 Ind. Dec. (N.S.) 807 and also Ishan Chandra Bhupi v. Nishi Chandra Bhupi 41 Ind. Cas. 378 : 22 C.W.N. 853 : 29 C.L.J. 1, for these cases and the principles therein laid down appear to be in accordance with the proposition set out in the Full Bench decision in the case of Dayamoyi v. Ananda Mohan Rai 27 Ind. Cas. 64 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52. There no doubt abandonment, relinquishment and repudiation of the tenancy are referred to, more particularly with regard to the transfer of only a portion of a non occupancy holding, but when the doctrine is applicable to a transfer of a part of a holding, a fortiori it is applicable to a transfer of the whole.

4. On the principles laid down in the oases we have cited we must dismiss this appeal with costs.


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