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Brojonath Sarma Vs. Maheswar Gahani and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in46Ind.Cas.100
AppellantBrojonath Sarma
RespondentMaheswar Gahani and ors.
Excerpt:
landlord and tenant - surrender, whether requires written document--surrender by operation of law. - .....collector seems to have made a mistake and put the defendants in possession of a portion of the land covered by the plaintiff's pattah, and the present suit was brought by the plaintiff to recover that portion of the land covered by his pattah which the defendants were improperly put into possession of. the learned judge of the lower appellate court dismissed the suit, on the ground that the original pattah to kanakeswar was an outstanding interest and that it had not been got over and, therefore, the defendants were entitled to set up the plea that the plaintiff had not got an immediate interest in the land entitling him to maintain a suit in ejectment. i do not think that that is right. in this country, it has been held over and over again that in surrendering a lease no document in.....
Judgment:

Fletcher, J.

1. This is an appeal by the plaintiff against the decision of the learned Subordinate Judge of the Assam Valley-Districts, reversing the decision of the Munsif of Sibsagar. The suit was brought to recover land and for mesne profits. The facts are these: Originally a person named Kanakeswar had a periodic settlement of the property. He got into difficulties and made over the land to three persons, namely, the plaintiff, the defendant Moheswar and another named Chakari. Those persons then approached the Government and new Pattahs were granted. The plaintiff now sues to recover the land in his Pattah. When the land came to be partitioned, the Sub-Deputy Collector seems to have made a mistake and put the defendants in possession of a portion of the land covered by the plaintiff's Pattah, and the present suit was brought by the plaintiff to recover that portion of the land covered by his Pattah which the defendants were improperly put into possession of. The learned Judge of the lower Appellate Court dismissed the suit, on the ground that the original Pattah to Kanakeswar was an outstanding interest and that it had not been got over and, therefore, the defendants were entitled to set up the plea that the plaintiff had not got an immediate interest in the land entitling him to maintain a suit in ejectment. I do not think that that is right. In this country, it has been held over and over again that in surrendering a lease no document in writing is necessary. The learned Judge seems to have assumed that in order to surrender a registered document was necessary. It was not a sale in this case, and a surrender to the landlord has been held over and over again in this country not to require any registered document. Therefore, when the parties took this new lease from Government, it operated as a surrender by operation of law, and the learned Judge's view that there was an outstanding interest cannot be supported. It is quite obvious in this case that success should be on the side of the plaintiff. The plaintiff offered to have an inquiry as, to whether he was in possession of any portion of the land covered by the defendants' Pattah and the defendants wisely, I think, refused to have such an enquiry. It is quite clear that there had been an error made by the Sub-Deputy Collector in having inducted the defendants into a portion of the land covered by the plaintiff's Pattah. The decree of the learned Judge of the lower Appellate Court is accordingly set aside and the decree of the Munsif restored with costs both in this Court and also in the lower Courts.

Shamsul Huda, J.

2. I agree.


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