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Mohesh Chunder Ghose and ors. Vs. Saroda Prasad Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1894)ILR21Cal433
AppellantMohesh Chunder Ghose and ors.
RespondentSaroda Prasad Singh and ors.
Excerpt:
landlord and tenant - transfer of tenure--bengal tenancy act (viii of 1885), sections 17, 18, and 88--rights of purchaser or transferee of tenure--right of suit. - .....a decree declaring that the execution sale is not binding as against him, and ordering that the entire sale be set aside.4. on second appeal it is contended on behalf of the defendants nos. 1 to 5 that the decision of the lower appellate court is wrong in law, being opposed to the provisions of section 88 of the bengal tenancy act, which provides that the 'division of a tenure, or holding, or distribution of the rent payable in respect thereof, shall not be binding on the landlord unless it is made with his consent in writing.' but what the plaintiff here asks for is not that he should he declared to have purchased a two-thirds share of the holding in question, and thereby to have become entitled to a separate holding consisting of that two-thirds share, and liable only for a.....
Judgment:

Banerjee, J.

1. This was a suit brought by the plaintiff-respondent for declaration of his right to a 10 annas, 15 gundas, 1 cowri, 1 krant, (that is a two-thirds) share in a mokurrari holding, and for possession of the same, after setting aside a sale held in execution of a decree for rent, to which he was no party.

2. The defence was that the plaintiff was not entitled to maintain the suit; and that the holding in question had been purchased by the defendants Nos. 1 to 5 at a valid sale held in execution of a decree for rent obtained by them against their registered tenant.

3. The Courts below have found for the plaintiff, and given him a decree declaring that the execution sale is not binding as against him, and ordering that the entire sale be set aside.

4. On second appeal it is contended on behalf of the defendants Nos. 1 to 5 that the decision of the Lower Appellate Court is wrong in law, being opposed to the provisions of Section 88 of the Bengal Tenancy Act, which provides that the 'division of a tenure, or holding, or distribution of the rent payable in respect thereof, shall not be binding on the landlord unless it is made with his consent in writing.' But what the plaintiff here asks for is not that he should he declared to have purchased a two-thirds share of the holding in question, and thereby to have become entitled to a separate holding consisting of that two-thirds share, and liable only for a proportionate share of the entire rent, but that he is entitled to be regarded as one of the persons who own and possess the holding in question, the liability for the rent of the entire holding still continuing joint.

5. We think that the plaintiff's contention, that he is entitled to be regarded as one of the tenants under the defendants Nos. 1 to 5 in respect of the holding of which he has purchased a share, is fully borne out by Section 17 of the Bengal Tenancy Act read with Section 18, and is not opposed to Section 88. Sections 17 and 18 of the Bengal Tenancy Act recognise the transfer of a share of a holding and entitle the transferee to claim to be regarded as one of the tenants in respect of the holding. If that is so, the decree in the rent suit that was brought only against the former tenant, after he had transferred a share of the holding to the present plaintiff, cannot be regarded as a valid and binding decree against the plaintiff; and the sale held in execution of such a decree cannot affect the rights of the plaintiff'. The decree, therefore, that the Courts below have given, declaring that the plaintiff's share in the holding in question is not affected by the execution sale at which the defendants Nos. 1 to 5 have purchased, and giving him joint possession of the said share in the entire holding, must stand.

6. It was then contended that the decree appealed against goes a great deal further, and directs that the entire execution sale should be set aside. To that extent, we think it cannot be sustained; and the learned vakil who appears for the respondent does not contend that the decree ought to be supported to that extent. That being so, so much of the decree as directs that the entire execution sale be set aside cannot stand.

7. The decree passed by the Courts below will, therefore, be modified by striking out this last mentioned part. Subject to this modification, the decree of the Court below is affirmed, and the appeal dismissed with costs.


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