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Nabendra Kishore Roy Vs. Keramat Ali Munshi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal63
AppellantNabendra Kishore Roy
RespondentKeramat Ali Munshi and ors.
Cases ReferredChandra Chatterjee v. Kali Charan
Excerpt:
- .....court did he produce certified copies of the order sheet showing that notices had actually been served. the trial court held that the search petition showing that notices had been destroyed raised a presumption of the service of notices which was not rebutted nor denied. i am inclined to think that he was correct in this inasmuch as the presumption is that the proceedings were regularly taken and that the partition would not have been., carried out unless the regular notices had been served. however, since the learned judge in the court of appeal below was not prepared to make this presumption, the plaintiff offered to produce a certified copy of the order sheet showing that, notices had been served. the learned. judge refused to allow the plaintiff time for this purpose. in this, i.....
Judgment:

Jack, J.

1. This appeal has arisen out of a suit for recovery of arrears of rent on the basis of an estate partition. The suit was decreed in part in the trial Court. The appeal to the lower appellate Court was allowed and the suit was dismissed on the ground that no notices were served on the defendants at the time of the partition as required by Section 81, Clause 3, Estates Partition Act. It appears that on an application for information the plaintiff was informed that the notices issued under Section 81 had been destroyed and that neither at the trial Court nor at the appellate Court did he produce certified copies of the order sheet showing that notices had actually been served. The trial Court held that the search petition showing that notices had been destroyed raised a presumption of the service of notices which was not rebutted nor denied. I am inclined to think that he was correct in this inasmuch as the presumption is that the proceedings were regularly taken and that the partition would not have been., carried out unless the regular notices had been served. However, since the learned Judge in the Court of appeal below was not prepared to make this presumption, the plaintiff offered to produce a certified copy of the order sheet showing that, notices had been served. The learned. Judge refused to allow the plaintiff time for this purpose. In this, I think, his discretion has not been wisely exercised for the plaintiff may have been under the impression that the presumption would arise, that the due formalities had been observed and that no further proof of the service of notice would be required in the absence of any evidence that the notice had not been served Certified copies of the partition orders have now been produced and I think that in the circumstances, I ought to admit them at this stage. They show that in fact the notices were duly served upon the defendants.

2. The only point of law that is raised in this Court is that inasmuch as the different defendants held different jamas under the plaintiff and his predecessors, the partition officer had no jurisdiction to pass the order allotting to the defendants this single jama under the plaintiff in lieu of the several jamas which they had held under the proprietors of the estate. The learned trial Court referred to the case of Chandra Chatterjee v. Kali Charan 1925 Cal 437-86 I 0-414 and held that in this rent suit he was not in a position to give relief to the defendants as regards the amalgamation of their jamas. In that case it was held that the orders passed by the Deputy Collector while acting under Section 81, Estates Partition Act, exercising the powers of a quasi judicial officer cannot be challenged by way of defence to a suit for rent in the absence of the other parties to the partition. In this case the other proprietors who were parties to the partition are not parties and in these circumstances the order allotting this jama to the plaintiff in the partition proceedings cannot be challenged. As held in that case, it could only be challenged by a suit or proceeding in which all the parties to the partition were parties.

3. There were two other points raised in the Court of appeal below and left undecided. One of these points referred to the claim for enhancement and the amount of enhancement allowed by the trial Court on behalf of the appellants. The other point was a point raised in the cross-appeal on behalf of the respondents that the trial Court was wrong in holding that his claim up to 1336 was barred under Rule 2, Order 2, Civil P. C. The parties now agree to give up their claims on these two points in favour of each other. There is accordingly no necessity of referring the case back for the decision of these points. The trial Court's orders on these points will be left undisturbed. The result is that the plaintiff is entitled to the rent which he claims to the extent allowed in the trial Court and the decree of that Court is restored. In view of the fact that this appeal has been necessitated by the failure of the plaintiff to file the certified copies in due time, I make no order as to costs in this appeal.


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