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Chandrakanta Bal Munshi Vs. Saharali Sheikh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1938Cal758
AppellantChandrakanta Bal Munshi
RespondentSaharali Sheikh and ors.
Cases ReferredNagendra Nath Sinha v. Niranjan Patra
Excerpt:
- .....treating the holding as abandoned and held it in khas till 1311 b. s. when it was settled with jira bewa who continued to possess it until the plaintiff took possession through court in execution of a rent decree against jira bewa, and he alleges that immediately after having got possession through court, he was dispossessed by the defendants. the defendants' case is that after bhulu's death, bhalu, another brother of his and other relations of bhulu possessed the land and then settled it in barga with kocha and that after possession for some years through kocha they resumed khas possession and have all along been in possession since then. they say that the plaintiff did not actually obtain possession in execution of his decree against jira bewa. the trial court decreed the suit but.....
Judgment:

Jack, J.

1. This appeal has arisen out of a suit for recovery of khas possession of the land described in the plaint and for meane profits. The holding originally was held by Bhulu who died leaving a widow and a daughter. The plaintiff alleges that after his death his widow left the place and the plaintiff landlord took possession treating the holding as abandoned and held it in khas till 1311 B. S. when it was settled with Jira Bewa who continued to possess it until the plaintiff took possession through Court in execution of a rent decree against Jira Bewa, and he alleges that immediately after having got possession through Court, he was dispossessed by the defendants. The defendants' case is that after Bhulu's death, Bhalu, another brother of his and other relations of Bhulu possessed the land and then settled it in barga with Kocha and that after possession for some years through Kocha they resumed khas possession and have all along been in possession since then. They say that the plaintiff did not actually obtain possession in execution of his decree against Jira Bewa. The trial Court decreed the suit but on appeal the suit was dismissed.

2. In this appeal it is urged that on the facts found by the Court below, the Judge ought to have decreed the prayer of the plaintiff for khas possession so far as the share of Jira Bewa was concerned. As regards this point, in the way I read the findings of the Court below, the Court accepted the defendants' version of possession as the learned Judge states. The defendants' version was that the plaintiff never obtained khas possession and that possession was held by the defendants all along and that when Jira Bewa abandoned the place the defendants were in possession of Jira Bewa's share. In this view of the facts, the decree against Jira Bewa cannot be regarded as a rent decree; it must be regarded as a money decree, and the plaintiff was not, in execution, entitled to possess the share of Jira Bewa. Another point raised is that the statement of the learned Judge that there is practically no evidence to prove any khas possession is incorrect, inasmuch as defendant 2 has stated that the landlord was in khas possession. On referring however to the evidence of defendant 2, I find that there is no such statement. The third point raised for the appellant is that the learned Judge is wrong in holding that under the provision of Section 146-A (3) (i) the holding is not entirely represented so as to make the rent decree effective against all the heirs of Bhulu, and in support of this the learned advocate for the appellant relies upon two separate decisions of this Court. One of them is a decision of R. C. Mitter J. in the case reported in Sasi Kanta Acharjee v. Lechoo Sheikh : AIR1936Cal30 in which the learned Judge holds that the sub-clauses of Section 146-A must be read disjunctively. He says:

If the defendants in a rent suit fulfilled the requirements of any of the four sub-clauses, they would be taken to be representing the entire body of co-sharer tenants in the tenure or holding.

3. The learned Judge has not given any reason for this interpretation of the subsection. The other case referred to is the case in Nagendra Nath Sinha v. Niranjan Patra : AIR1937Cal665 . In this case the learned Judge simply refers to the fact that R. C. Mitter J. has held that the four sub-clauses should be read disjunctively and no reason is given by the learned Judge for his opinion on this point. Now Section 146. A (3) states:

The entire body of co-sharer tenants in a tenure or holding shall for the purposes of Sub-section (2) be deemed to be represented by the defendants to the suit if such defendants include:

(i) all the co-sharer tenants in the tenure or holding whose homestead are situated in the village in which the tenure or holding is situated;

(ii) such of the co-sharer tenants in the tenure or holding, as have, at any time during the three years previous to that for the rent of which the suit is brought, made any payment of rent for the tenure or holding;

(iii) such co-sharer tenants who having purchased an interest in the tenure or holding have given notice of the purchase under Sub-section (3), Section 12, or Section 26-B or Section 26-F, as the case may be, or, who having succeeded to an interest by inheritance have given notice of their succession under Section 15; and

(iv) all other co-sharer tenants in the tenure or holding whose names are entered in the landlord's rent-roll.

4. According to the literal meaning of the words in this sub-section, the clauses can-not be read disjunctively and in the absence of any reason for holding otherwise by the learned Judges whose decisions I have referred to, I must respectfully disagree with their view. Accordingly, I think that in the present case the learned Judge in the Court of Appeal below was right in holding that the tenure was not fully represented in the suit against Jira Bewa, holding as he does that others, besides Jira Bewa, had an interest in the holding and had not abandoned the holding and were living in the same village. The result is that this appeal must be dismissed. There will be no order as to costs in view of the non-appearance of the respondents.


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