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Bissesuri Dabeea and ors. Vs. Baroda Kanta Roy Chowdry and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal1076
AppellantBissesuri Dabeea and ors.
RespondentBaroda Kanta Roy Chowdry and ors.
Excerpt:
specific relief act, i of 1877, section 42 - declaration of title--suit by landlord during continuance of tenancy. - .....are the persons, entitled to recover possession as against the defendants; and as this is a suit for possession and possession only, it must be dismissed.4. in this we think he is clearly wrong. under section 42 of the specific belief act, any person, entitled to any right to any property, may institute a suit against any person denying, or interested to deny, his right to that property; and the court may, in its discretion, declare that he is so entitled, and the plaintiff need not sue for any further relief. (sic) plaintiff's here, in fact, have asked for the further relief, that they should be placed in the same position 'as before' as regards the nim-howladars, that is, that they should be restored to possession as against the defendants.5. it has been contended in support of.....
Judgment:

Richard Garth, C.J.

1. The plaintiffs are the howladars of a certain estate, and they have let their land to certain persons as nim-howladars; and the complaint which they make in this suit is, that the principal defendants have entered upon this land in the possession of their tenants, the nim-howladars, have turned the nim-howladars out, and are claiming the land as against them by an adverse title. Under these circumstances, as the nim-howladars have not brought a suit against the principal defendants, the plaintiffs have brought this suit against them for the purpose of having their title declared as against the defendants, and of being put in the same position 'as before,' which was a possession by receipt of rent as against the nim-howladars.

2. In order that there should be no mistake about this, the prayer in the plaint is to this effect: 'That on declaration of the plaintiffs' howlai right to the said land, and on ejectment therefrom of the defendants Nos. 5, 6 and 7, who are trespassers therein, possession as before to the whole land, as per boundaries given below, may be awarded to the plaintiffs.' Now the possession which the plaintiff had before, was not khas possession; it was possession by receipt of rent from the nim-howladars, and that is the possession which they pray should be restored to them.

3. The Subordinate Judge has entirely misunderstood the nature of the suit. He understands it to be a suit for khas possession. The plaintiffs, he says, cannot sue for khas possession, so long as the nim-howladars' title to remain in continues. He says, that, the nim-howladars are the persons, entitled to recover possession as against the defendants; and as this is a suit for possession and possession only, it must be dismissed.

4. In this we think he is clearly wrong. Under Section 42 of the Specific Belief Act, any person, entitled to any right to any property, may institute a suit against any person denying, or interested to deny, his right to that property; and the Court may, in its discretion, declare that he is so entitled, and the plaintiff need not sue for any further relief. (sic) plaintiff's here, in fact, have asked for the further relief, that they should be placed in the same position 'as before' as regards the nim-howladars, that is, that they should be restored to possession as against the defendants.

5. It has been contended in support of the view which the Subordinate Judge has taken, that this case comes within the principle of a decision by Peacock, G.J., and LOCK and Jackson, JJ., in 10 W.R. 15. The question there was of a totally different character. That was a suit brought by the plaintiff, who was the zamindar, to recover possession of a piece of land which had been let to his, the zamindar's, tenants; and while it was in the possession of these tenants, it had been encroached upon by a third person, the defendant, who had held it up to the expiration of the tenants' lease, and the answer which the defendant, the trespasser, made was, that the encroachment had taken place more than twelve years before suit, and that the plaintiff, the zamindar, was barred, because he ought to have sued within twelve years from the encroachment. But the Court said, no. The land was in possession of tenants, and if we were to hold that the landlord was barred, any tenant who had an interest in the land for more than twelve years might connive with some trespasser and so defeat the landlord's right. The landlord, if he pleases, may wait until the tenant's interest expires, and then bring an action against the trespasser.

6. That case is consistent with the view which we take of this case. This is not a case of that kind. Here the landlord, seeing that his title is in jeopardy by the aggression of a neighbouring zamindar, and that his title may be damaged by the defendant's denial of his rights, brings a suit for the purpose of having his rights declared as against those defendants, and of being put in possession of the land as against them.

7. The case must, therefore, go back for the purpose of being tried upon its merits, having regard to the view of the law which we have laid down.

8. The costs in both Courts will abide the result.


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