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Surendra Krishna Roychoudhury and ors. Vs. Peary Mohan Roy - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.698
AppellantSurendra Krishna Roychoudhury and ors.
RespondentPeary Mohan Roy
Excerpt:
bengal tenancy act (viii of 1885), section 106, suit under - possession--title, question of whether can be gone into. - .....it is quite true that an issue was settled as to who was in possession, but on appeal, before the learned judge of the lower appellate court, it is quite clear that no stress was placed upon this question and the learned judge did not deal with the case on that footing. i think that the authorities of this court show quite clearly that where there are rival proprietors this question of possession is the only matter that should be gone into. as 'regards the other parties claiming, the court is not limited to the question of possession [vide pran krishna saha y. trailakhya nath choudhary 27 ind. cas. 883 : 19 c. w. n. 911,], in this case the court, not being limited to the question of possession, was entitled, to go into the question as to the plaintiff having purchased in execution of a.....
Judgment:

Fletcher, J.

1. This is an appeal by the defendants against a decision of the learned Special Judge of the 24 Pergannabs sitting under the provisions of the Bengal Tenancy Act affirming the decision of the Settlement Officer at Alipore. The appeal arises out of a proceeding under Section 106 of the Bengal Tenancy Act, and the only question raised in the case whether the Courts were limited to the question as to who was in possession and, having decided that point, whether they could go any further and adjudicate on the rights of the parties. 1 think on the question of possession there is a short answer, namely, that this point was not raised in either of the Courts below. It is quite true that an issue was settled as to who was in possession, but on appeal, before the learned Judge of the lower Appellate Court, it is quite clear that no stress was placed upon this question and the learned Judge did not deal with the case on that footing. I think that the authorities of this Court show quite clearly that where there are rival proprietors this question of possession is the only matter that should be gone into. As 'regards the other parties claiming, the Court is not limited to the question of possession [vide Pran Krishna Saha y. Trailakhya Nath Choudhary 27 Ind. Cas. 883 : 19 C. W. N. 911,], In this case the Court, not being limited to the question of possession, was entitled, to go into the question as to the plaintiff having purchased in execution of a decree on his mortgage. It is said that these parting in the present case are, in fact, rival proprietors because the property is brahmatter; but that is not the meaning of the word within the meaning of the Bengal Tenancy Act or as it is understood in the Indian Courts,

2. The next point raises a matter that we cannot go into in this case. The plaintiff claims as the purchaser in execution of his mortgage decree and the defendants, claim under a subsequent mortgage, although in the suit in execution of the decree in which the plaintiff purchase-1, the mortgagee under whom the defendants claim, was not made a party. We cannot deeile the Fights of the parties in this case as to whether the plaintiff's case is barred by limitation or any other matter that Dr. Basak's clients may wish to raise either in a suit be Might by themselves or in a suit brought by the plaintiff. This suit is limited to the question of amending the entries in the Record of Rights. That being the only paint that this Court can go into in this case, all these points about the rights of the parties under different deeds and Executions are not matters that should be touched or decided in the present case. All that we can say is that the learned Judge of the lower Appellate Court, on the authorities of this Court, came to a right conclusion. In that view, the present appeal fails and must be dismissed with costs.

Newrould, J.

3. I agree.


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