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Srinath Bose Vs. Debendra Nath Barari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal24
AppellantSrinath Bose
RespondentDebendra Nath Barari and ors.
Excerpt:
- .....act directing payment of a certain amount under clause (2) of that section as the balance of landlord's transfer-fee, should not be set aside on the ground that section 26j of the act having not contemplated any application, the order of the learned munsif was without jurisdiction and as such illegal. the learned advocate for the petitioner explains that this means that before coming under section 26j of the act, the applicant must first of all establish by a regular suit the fact that his holding is an occupancy holding. the result of the adoption of this view would be that wherever a tenant wrongly describes his holding as a permanent tenure or a rent-free tenure in a deed of transfer, the landlord is forced to bring a suit in order to recover the transfer-fee which is justly due.....
Judgment:

Jack, J.

1. This Rule has been issued upon the opposite party to show cause why the decision of the District Judge of Faridpur, dismissing an appeal against the decision of an application under Section 26J of the amended Bengal Tenancy Act directing payment of a certain amount under Clause (2) of that section as the balance of landlord's transfer-fee, should not be set aside on the ground that Section 26J of the Act having not contemplated any application, the order of the learned Munsif was without jurisdiction and as such illegal. The learned advocate for the petitioner explains that this means that before coming under Section 26J of the Act, the applicant must first of all establish by a regular suit the fact that his holding is an occupancy holding. The result of the adoption of this view would be that wherever a tenant wrongly describes his holding as a permanent tenure or a rent-free tenure in a deed of transfer, the landlord is forced to bring a suit in order to recover the transfer-fee which is justly due to him under the Bengal Tenancy Act. This view is, I think, quite untenable. For the purposes of Section 26J,. the landlord has only got to show in a summary proceeding that the holding is a raiyati holding in order to be able to recover the balance of the transfer-fee to which he is entitled under Section 26-C or Section 26E. This of course will not debar any subsequent suit by the tenant to establish that the tenure is a permanent tenure or rent-free tenure; and if he establishes that fact in a subsequent suit, he will be entitled, to recover the balance of the landlord's transfer-fee which has been paid under Section 26J of the Act. The rule is accordingly discharged with costs, one gold mohur.


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