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Dwarka Nath Sen and ors. Vs. Mohima Charan Mandal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in9Ind.Cas.121
AppellantDwarka Nath Sen and ors.
RespondentMohima Charan Mandal and ors.
Excerpt:
appeal - power of appellate court--interference with lower court's decree in absence of appeal on a point--jurisdiction. - .....were not entitled to eject defendant no. 1 from plots nos. 2, 3 and 4 and declared their jote right to these three plots and also made a declaration that the defendant no. 1 would be allowed to enjoy plots nos. 2, 3 and 4 as tenants under the plaintiffs. as regards plots nos. 1 and 5, a decree for possession was given in favour of the plaintiffs upon a declaration of both jote and jamai right.4. the plaintiffs appealed with respect to plots nos. 2, 3 and 4. no appeal was preferred by the defendants as regards plots nos. 1 and 5. the lower appellate court found that the rent decree and the purchase in execution of it were fraudulent and collusive in their nature and intended to defraud defendants nos. 1, 2 and 3 of their just rights and it further held that the plaintiffs had no.....
Judgment:

Chatterjee, J.

1. The suit was to recover khas possession of plots Nos. 1, 2, 5 and the southern half of plot No. 4 and for confirmation of possession of plot No. 3 and the northern half of plot No. 4.

2. The plaintiffs claimed these lands both in jote and jamai right. The jamai right, the plaintiffs alleged, had been purchased by them at a sale held in execution of a rent decree against the recorded tenant. Defendant No. 1 alone appeared in the suit and impeached the decree and the sale as fraudulent and collusive. He claimed to have purchased plots Nos. 2, 3 and 4 as per boundaries given at the foot of his written statement from one Mela Ram who had not been made a party to the rent suit. The other defendants did not appear and contest the suit.

3. The Court of first instance held that the vendor of defendant No. 1 was not bound by the decree and the sale and that the plaintiffs were not entitled to eject defendant No. 1 from plots Nos. 2, 3 and 4 and declared their jote right to these three plots and also made a declaration that the defendant No. 1 would be allowed to enjoy plots Nos. 2, 3 and 4 as tenants under the plaintiffs. As regards plots Nos. 1 and 5, a decree for possession was given in favour of the plaintiffs upon a declaration of both jote and jamai right.

4. The plaintiffs appealed with respect to plots Nos. 2, 3 and 4. No appeal was preferred by the defendants as regards plots Nos. 1 and 5. The lower appellate Court found that the rent decree and the purchase in execution of it were fraudulent and collusive in their nature and intended to defraud defendants Nos. 1, 2 and 3 of their just rights and it further held that the plaintiffs had no cause of action against any of the defendants and that their suit must fail. In the result, the entire suit was dismissed.

5. The plaintiffs have appealed to this Court and three points have been raised by them. The first point urged is that the lower appellate Court had no power to interfere with the decree of the Court of first instance with regard to plots Nos. 1 and 5 with respect to which there was no appeal preferred to the lower appellate Court. I think this contention should prevail. The plaintiffs appealed to the lower appellate Court only with respect to so much of the decree of the Court of first instance as was against them. Plots Nos. 1 and 5 which were decreed in favour of the plaintiffs were not the subject-matter of the appeal to the lower appellate Court and the lower appellate Court had no power to reverse the decree of the Court of first instance with regard to these two plots.

6. The second point urged is that the lower appellate Court, having found that Mela Ram, the vendor of defendant No. 1, had plot No. 2, 1/2 share of plot No. 3 in the middle, and the southern half of plot No. 4 on partition with his brothers and that he had sold these lands to defendant No. 1 under a kobala dated the 13th March 1904, ought to have given the plaintiffs a decree for such portion of plots Nos. 3 and 4 as were not covered by the kobala of defendant No. 1. I think this contention of the appellants is valid and that the plaintiffs ought to get a decree for possession of the lands in suit other than the plot No. 2, 1/2 share of plot No. 3 in the middle and the southern half of plot No. 4, that is, the lands covered by the kobala of defendant No. 1.

7. Lastly, it is pointed out by the appellants that the Court of first instance declared plaintiffs' jote right to plots Nos. 2, 3 and 4. The lower appellate Court ought not to have reversed that decree in so far as it declared the plaintiffs' jote right. Defendant No. 1 never denied the jote right of the plaintiffs, he only denied that the jamai right which he had purchased from Mela Ram passed to the plaintiffs. There should be a declaration of the plaintiffs' jote right to the plots purchased by the defendant No. 1.

8. In other respects, the appeal is dismissed.

9. The appellants should pay the costs of the respondent.


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