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Swarna Moyi Dasi Vs. Gayratulla Sardar and Sridhar Mandal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.704
AppellantSwarna Moyi Dasi
RespondentGayratulla Sardar and Sridhar Mandal and ors.
Cases ReferredDayamoyi v. Ananda Mohan Rey
Excerpt:
occupancy holding, non-transferable - transfer of portion--aandonment--landlord, right of, re-entry of--tenants holding undivided shares, position of. - .....no. 3, and abandoned the holding. the defendants nos. 8 to 15 are entitled to the other 8-annas share of the holding, and it is not alleged in the plaint, nor is it found in the judgment, that the other 8 annas has been transferred by the tenant or that the tenant has abandoned that portion of the holding. the view that commended itself to the learned judge of the lower appellate court is clearly wrong. he books upon this undivided 8 annas or 1/2 share as one holding belonging to the plaintiff and the remaining undivided 8 annas belonging to the defendants nos. 8 to 15 as another holding. that is clearly wrong. as regards the tenant, the holding is one and an entire holding of a particular 'piece of land. it may be that different persons are entitled in different and undivided.....
Judgment:

1. This is an appeal by the defendant No 3 against the judgment of the learned Subordinate Judge of Jessore, dated the 17th June 1515, reversing the decision of the Munsif at Narail. The suit was brought by a 8-annas co-sharer landlord to recover khas possession of his share in a non-transferable holding, on the ground that the original tenant had transferred that share to the appellant, the defendant No. 3, and abandoned the holding. The defendants Nos. 8 to 15 are entitled to the other 8-annas share of the holding, and it is not alleged in the plaint, nor is it found in the judgment, that the other 8 annas has been transferred by the tenant or that the tenant has abandoned that portion of the holding. The view that commended itself to the learned Judge of the lower Appellate Court is clearly wrong. He books upon this undivided 8 annas or 1/2 share as one holding belonging to the plaintiff and the remaining undivided 8 annas belonging to the defendants Nos. 8 to 15 as another holding. That is clearly wrong. As regards the tenant, the holding is one and an entire holding of a particular 'piece of land. It may be that different persons are entitled in different and undivided shares to the land as between themselves. But it not having been found and not having been alleged that the defendant No. 2, the original tenant, has parted with the other 8 annas of the holding belonging to the defendants Nos. 8 to 15, on the judgment of the full Bench of this Court reported as Dayamoyi v. Ananda Mohan Rey (1) the tenant has not abandoned the holding so as to give the landlord a right to re-enter. In that view, the judgment of the learned Judge of the lower Appellate Court must be set aside and that of the Munsif restored. The plaintiff's suit is accordingly dismissed with costs in all Courts.


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