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Surendra Nath Sen and anr. Vs. Dinabandhu Naik - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in4Ind.Cas.535
AppellantSurendra Nath Sen and anr.
RespondentDinabandhu Naik
Excerpt:
lease - covenant for renewal--term and rent not specified--vague and not enforceable. - .....rights and liabilities of the parties must, therefore, be governed by sections 48 and 49 of the bengal tenancy act.2. there was a written lease for nine years apparently with reference to the law as laid down in section 85 of the bengal tenancy act. by that lease, it was agreed that the tenancy of the defendant would expire at the end of nine years. the present suit was instituted after the expiry of those nine years and the only defence that the defendant could raise was that under a clause in the lease, he might apply for re-settlement and the plaintiff would be bound to grant him a re-settlement without any bonus.3. no defence could be raised on the ground that the defendant had improved the property, raised embankments and cleared the jungles. the lower appellate court, however,.....
Judgment:

1. On the 5th April 1906, this Court came to the conclusion that the plaintiffs were raiyats and not tenure holders and the defendant was an under-raiyat. The statutory right to continue in possession which is conferred by the Bengal Tenancy Act on occupancy raiyats cannot be availed of by the defendant. The rights and liabilities of the parties must, therefore, be governed by Sections 48 and 49 of the Bengal Tenancy Act.

2. There was a written lease for nine years apparently with reference to the law as laid down in Section 85 of the Bengal Tenancy Act. By that lease, it was agreed that the tenancy of the defendant would expire at the end of nine years. The present suit was instituted after the expiry of those nine years and the only defence that the defendant could raise was that under a clause in the lease, he might apply for re-settlement and the plaintiff would be bound to grant him a re-settlement without any bonus.

3. No defence could be raised on the ground that the defendant had improved the property, raised embankments and cleared the jungles. The lower appellate Court, however, has on this defence of the defendant, held that he is entitled to get a fresh bundobust of the land.

4. As that defence fails, the defendant has no case, inasmuch as the covenant in the lease for the renewal of the settlement is very vague. No terms are specified in the louse and there is nothing in it which would indicate what the rent would be. All that appear is that the defendant would be entitled to re-settlement. It does not also appear from the written statement of the defendant that he did in fact apply for re-settlement in terms of the covenant in the lease. All that he says is that he is willing to remain on the land. If the conditions of re-settlement were specific as to the term of years and if the rental was specifically stated the defendant might have pleaded in defence of the suit his right to specific performance as against the plaintiffs. But as we have said, the conditions of resettlement are very vague and no Court would be disposed to give effect to them.

5. We are, therefore, of opinion that the decisions of the lower appellate Court should be set aside and the suit decreed with costs in all the Courts. The plaintiffs are entitled to get khas possession of the land in suit.

6. The same judgment will govern both the appeals.


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