Skip to content


Girish Chandra Choudhury and ors. Vs. Gopal Chandra Poddar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1925Cal1184
AppellantGirish Chandra Choudhury and ors.
RespondentGopal Chandra Poddar and ors.
Excerpt:
- .....from taking possession of the property sold in execution of the decree and purchased by him. 'the suit was decreed in the first court, but that decree was reversed in appeal. the facts established by the findings of the lower appellate court are that kailash and prokash obtained a settlement of this land in 1878 before the transfer of property act was passed for the purpose of erecting houses. they have since then been in possession of the land. the present malik is one jitendra pal. in june 1916 kailash and prokash sold this tenancy to the plaintiffs by a kobala ex. 7. the plaintiffs being apprehensive of the validity of the title derived by this purchase obtained a patni settlement of this land from jitendra pal in november 1916. the first court decreed the plaintiffs' suit holding.....
Judgment:

1. This is an appeal by the plaintiffs in a suit brought by them under Order 21, Rule 63, Civil P.C. Defendant No. 1 obtained a decree against two persons Kailash and Prokash, said to be tenants of the disputed land, and in execution of that decree he attached the property in suit, The plaintiffs preferred a claim against the attachment which was rejected on the 6th October 1917. Thereafter the property was sold and purchased by Defendant No. 1. Having lost the claim case the plaintiffs brought the present suit for a declaration of their title and for a permanent injunction against Defendant No. 1, restraining him from taking possession of the property sold in execution of the decree and purchased by him. 'The suit was decreed in the first Court, but that decree was reversed in appeal. The facts established by the findings of the lower appellate Court are that Kailash and Prokash obtained a settlement of this land in 1878 before the Transfer of Property Act was passed for the purpose of erecting houses. They have since then been in possession of the land. The present malik is one Jitendra Pal. In June 1916 Kailash and Prokash sold this tenancy to the plaintiffs by a kobala Ex. 7. The plaintiffs being apprehensive of the validity of the title derived by this purchase obtained a patni settlement of this land from Jitendra Pal in November 1916. The first Court decreed the plaintiffs' suit holding the kobala to be a genuine and bona fide document, but the lower appellate Court found it to be without consideration and a colourable transaction resorted to protect the judgment-debtors' interest from the hands of his creditors. The finding of the Court, therefore, was that the tenancy of Kailash and Prokash subsisted at the date of the sale and that the Defendant No. 1 purchased it and obtained delivery of possession of the same. In this view the plaintiffs' suit was dismissed with the declaration of the plaintiffs putni right therein. The plaintiffs' appeal and it is argued on their behalf that the tenancy having been created before the Transfer of Property Act came into force, the interest of the tenant must be regarded as non-transferable and, therefore, not liable to be attached in execution of the decree. This point, was no doubt adumbrated in the plaint but it was never put forward before the Courts below. There was no issue framed on this question, and evidently no evidence was directed with regard to it. In the Courts below it was never disputed that the tenancy of Kailash and Prokash was not transferable because the plaintiffs themselves came to Court as purchasers from Kailash and Prokash. Having lost their case on that point they cannot now 1 allowed to raise a point not put forward in the Courts below. We are asked to hold either that the tenancy of Kailash and Prokash was not transferable and therefore, the Defendant No. 1's purchase is invalid or to remand the case for the determination of this question. We are not prepared to adopt the first course suggested, but if we follow the second one the result will be that the case will be retried from the very beginning. All the evidence taken in the case will have to be discarded and fresh evidence will have to be given to prove custom in favour of the transferability of such tenures. This question, therefore, cannot be raised now. We do not ex' press any opinion with regard to any right which the plaintiffs may possess to proceed against the defendants upon any other cause of action. This appeal accordingly fails and is dismissed with costs.

2. The cross-objection is now pressed and is, therefore, dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //