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WajihuddIn and anr. Vs. Syed Mazhar Hossain - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.457
AppellantWajihuddIn and anr.
RespondentSyed Mazhar Hossain
Excerpt:
partition - decree against co-sharer previous to partition--execution sale of house--purchase ay co-sharer in benami--benamdar, whether necessary party in partition--house falling in share of another co-sharer--suit by that co-sharer for possession. - .....his interest in the said peel khana had been sold up and purchased by his brother-in-law, one hamid rasool, but really for his own benefit, or in other words, hamid rasool was his benamdar, and that, therefore, the plaintiffs could not recover possession of the same.2. the learned judge of the court below has adopted the contention of the defendant in so far that hamid rasool was his benamdar. but he says at the same time that the building was in the occupation of hamid rasool within two years of the suit and that it must be taken that the said individual was a tenant from month to month under the transfer of property act and entitled to fifteen days' notice before he could be compelled to quit. he further finds that there was no question of occupancy-right whatsoever. in this view.....
Judgment:

1. This is a very clear case. Under a batwara which took place between the plaintiffs, the defendant Mazhar Hossain, and certain other co-sharers, a certain dilapidated building described as peel khana (stable for elephants) fell to the share of the plaintiffs; and they brought this suit to recover possession thereof as against Mazhar Hossain. This person set up an occupancy-right and pleaded, that in execution of a decree for money against himself, his interest in the said peel khana had been sold up and purchased by his brother-in-law, one Hamid Rasool, but really for his own benefit, or in other words, Hamid Rasool was his benamdar, and that, therefore, the plaintiffs could not recover possession of the same.

2. The learned Judge of the Court below has adopted the contention of the defendant in so far that Hamid Rasool was his benamdar. But he says at the same time that the building was in the occupation of Hamid Rasool within two years of the suit and that it must be taken that the said individual was a tenant from month to month under the Transfer of Property Act and entitled to fifteen days' notice before he could be compelled to quit. He further finds that there was no question of occupancy-right whatsoever. In this view of the matter, he has dismissed the plaintiffs' suit, and hence this appeal by them.

3. It seems to us that the two portions of the judgment of the District Judge are inconsistent with each other. If he holds that Hamid Rasool was but a benamdar of the defendant, he, the defendant, was bound to surrender the property to the plaintiffs it having, under a batwara to which both the plaintiffs and the defendant were parties fallen into the plaintiffs' patti. And we do not understand how, if that is the correct position, Hamid Rasool could claim a tenancy-right in the building, so that he was entitled to fifteen days' notice to quit. No doubt, Hamid Rasool is no party to the suit, as the Judge has pointed out, but in the view of facts accepted by himself, that individual is not a necessary party for he is bat a benamdar of the defendant. The learned Vakil for the respondent has, however, asked us to hold that as a malik of the mouzah which was brought under batwara, the defendant was entitled to hold possession of the building upon payment of rent but, as pointed out by the Munsif, it was nowhere suggested that any rent had ever been paid and the batwara which took place between the parties does not, while it allots the property in dispute to the plaintiffs, reserve any rent as payable by either the defendant or Hamid Rasool, his benamdar, to the plaintiffs. That being so, we do not see upon what possible ground can the plaintiffs be deprived of the benefit of the allotment that has been made in their favour under the batwara in question. The result is that the decree of the lower Appellate Court is reversed, and that of the first Court, restored with costs.


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