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Kunya Kesori Pal Chowdhury and ors. Vs. Srimati Bama Sundari Dasya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in32Ind.Cas.781
AppellantKunya Kesori Pal Chowdhury and ors.
RespondentSrimati Bama Sundari Dasya and ors.
Excerpt:
landlord and tenant - non-transferable occupancy holding--transfer of portion--transferee's right, whom raiyat refuses to pay rent for transferred portion--landlord, rights of. - .....3, by his own acts and conduct made it as clear as possible that he had no further interest in the land. the land is, therefore, at the disposal of the landlords, unless any third person can make out a good title to possession as against them. the present case is easily distinguishable from those cases where after transferring a portion of the holding the tenant continues in possession of the remainder and continues to pay, or, at any rate does not deny his liberty to pay the rent due in respect of the whole holding. in cases of that kind it is familiar law that there is no abandonment or surrender of the holding either as a whole or in part. but the present case is very different and the conclusion arrived at by the learned subordinate judge appears, to us to be entirely inconsistent.....
Judgment:

1. The holding in question in this suit originally belonged in its entirety to the defendant No. 3. He sold a portion of it to the defendant No. 2 in the name of the latter's mother, the defendant No. 1. The holding is found to be a non-transferable occupancy holding and, as we read the judgment of the learned Subordinate Judge in the lower Appellate Court, he has also found that, subsequently to the transfer of the portion of the holding, the defendant No. 3 refused to pay rent for that portion and tendered to the landlords the proportionate rent due in respect of the remainder of the holding, which the landlords accepted. The learned Subordinate Judge, in one part of his judgment, says this: 'The plaintiff's first witness Kamini, who is the naib of the plaintiffs owning 6 annas and 7 1/2 gandas share, deposes that the defendants Nos. 3 and 4 refused to pay rent, for the land in suit as it was sold and that the defendant No. 3 paid rent for the lands other than the land in suit. The refusal to pay rent was due to the fact that the land had been sold.' Then further on, the Subordinate Judge says: The refusal to pay rent was due to the fact that there was a sale and the alleged relinquishment was in favour of the purchaser.' From these passages, we gather, as we have said, that the learned Subordinate Judge accepted the evidence of the plaintiffs' naib that, after the transfer in question, the defendant No. 3 refused to pay rent for the land he had transferred. In that state of things, it was, of course, open to the landlords to decline to accept an apportionment of the rent and to decline to recognize any division of the holding. On the defendant No. 3 refusing to pay the entire rent of the whole holding, the landlords might have instituted a rent suit and so brought the holding to sale in execution of any decree they might have obtained. But, in our opinion, this was not the only course open to the landlords. We can see no reason why the landlords should not be at liberty, if they so chose, to accept from the defendant No. 3 the amount of rent tendered by him for the land he still held without prejudice to any right which they might have as proprietors in respect of the transferred portion. The learned Subordinate Judge in the Court of Appeal below has found on these facts that there was no surrender of the transferred portion in favour of the landlords. It seems to us, however, that only one conclusion is possible from the transfer coupled with the subsequent refusal to pay the rent of the transferred portion; clearly that amounted on the part of the defendant No. 3 to a disclaimer of all right, title and interest in the transferred portion. He had transferred his interest as tenant to the defendant No. 2, and as between him and the defendant No. 2 his interest as tenant was extinguished. As to the landlords he put an end to the relationship of the landlord and tenant by refusing to pay rent for this land. In our opinion the tenant, the defendant No. 3, by his own acts and conduct made it as clear as possible that he had no further interest in the land. The land is, therefore, at the disposal of the landlords, unless any third person can make out a good title to possession as against them. The present case is easily distinguishable from those cases where after transferring a portion of the holding the tenant continues in possession of the remainder and continues to pay, or, at any rate does not deny his liberty to pay the rent due in respect of the whole holding. In cases of that kind it is familiar law that there is no abandonment or surrender of the holding either as a whole or in part. But the present case is very different and the conclusion arrived at by the learned Subordinate Judge appears, to us to be entirely inconsistent with the facts which he has found. On the materials before us the only conclusion possible is, as we have said, that the defendant No. 3 has ceased to have any interest in the transferred land. If that be so, what are the rights to the land as between the transferee and the landlords? Prima facie, the landlords are entitled to the land. The transferee shows no title from the landlord, his title is derived from the defendant No. 3 who had no power to create title good against the landlords. In the circumstances, we are of opinion that there is no answer to the landlords' suit. The result is that the decree of the lower Appellate Court must be set aside and that of the Court of first instance restored. The plaintiffs, the appellants before us who are co-sharers in the land to the extent of 6 annas 7 1/2 gandas, are entitled under the latter decree to joint possession to the extent of their share. The other co-sharers were made party defendants and no question is raised as to their share. The appellants are entitled to their- costs throughout from the contesting defendants.


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