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Mokbul HossaIn Vs. Ameer Sheikh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal131
AppellantMokbul Hossain
RespondentAmeer Sheikh
Excerpt:
landlord and tenant - suit for ejectment--service tenure--bengal tenancy act (viii of 1885), sections 89 and 181. - .....plaintiff could not be ejected except in execution of a decree. but this tenure admittedly is a service tenure, and looking at section 181, i think upon the construction of that section service tenures are excepted from the operation of section 89. if the section does not mean that, i feel a difficulty in appreciating what it does mean. it has been found as a fact in this case that liability to dismissal at the will of the zemindar was incidental to the service tenure in question.2. the second point is, that the plaintiff can only be ejected after reasonable notice.3. that point was not raised in the court of first instance, but it was raised for the first time in the lower appellate court. there is nothing, however, in the findings of fact in the court below which enables us to say.....
Judgment:

Maclean, C.J.

1. I think the appeal fails on both grounds. The first ground is, that, under Section 89 of the Bengal Tenancy Act, the plaintiff could not be ejected except in execution of a decree. But this tenure admittedly is a service tenure, and looking at Section 181, I think upon the construction of that section service tenures are excepted from the operation of Section 89. If the section does not mean that, I feel a difficulty in appreciating what it does mean. It has been found as a fact in this case that liability to dismissal at the will of the zemindar was incidental to the service tenure in question.

2. The second point is, that the plaintiff can only be ejected after reasonable notice.

3. That point was not raised in the Court of First Instance, but it was raised for the first time in the Lower Appellate Court. There is nothing, however, in the findings of fact in the Court below which enables us to say whether or not there was reasonable notice. On both points the appeal fails and must be dismissed with costs.

Banerjee, J.

1. I am of the same opinion. I only wish to add one word with reference to the first of the two contentions raised before us. The contention was that the plaintiff was not liable to ejectment except in execution of a decree as provided by Section 89 of the Bengal Tenancy Act. I am of opinion that the application of that section to service tenures must be taken to be limited by Section 181 of the Act, which enacts that nothing in this Act shall affect any incident of a ghatwali or other service tenure.? It has been found as a fact that liability to dismissal at the will of the zemindar is an incident of the particular service tenure now under consideration. That being so, the question is whether, notwithstanding that that is an incident of this service tenure, and notwithstanding that Section 181 enacts that nothing in the Act shall affect any such incident, it is still open to the plaintiff to claim the benefit of Section 89. I think the question must be answered in the negative. For if, notwithstanding all this, Section 89 is to have operation, then Section 181 would become so far nugatory, and that could not have been intended by the Legislature.


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