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Karnadhar Haldar Vs. Hari Prosad Roy Chowdhury and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.338
AppellantKarnadhar Haldar
RespondentHari Prosad Roy Chowdhury and ors.
Cases ReferredNabakumnari Debi v. Behari Lal Sen
Excerpt:
specific relief act (i of 1877), section 54, clauses (d), (e) and section 56(b) - injunction--irreparable injury--trespass--enforced recognition of transferability of holding--multiplicity of suits--stay of proceedings--marfatdar, receipt of rent from. - .....holding covered by the defendant's decree against that third person. both the lower courts have granted an injunction. it has been found that the holding claimed by the defendant is not a transferable holding and that the plaintiffs as landlords never recognised the defendant as a tenant by receipt of rent or otherwise.2. now, in second appeal four arguments have been submitted, of which the first embodies a new point which was not discussed in either of the judgments of the courts below. it is this that the plaintiffs cannot get their injunction because the defendant has not invaded, or threatened to invade, their right to the enjoyment of any property and because the case does not come within section 54 (d) of the specific relief act, which says that a perpetual in junction may be.....
Judgment:

Caspersz, J.

1. The defendant-appellant obtained a decree against a third person in a suit to which the plaintiffs-respondents were not parties. The plaintiffs are landlords of the land in controversy and they brought their action to prevent the defendant from taking possession of the holding covered by the defendant's decree against that third person. Both the lower Courts have granted an injunction. It has been found that the holding claimed by the defendant is not a transferable holding and that the plaintiffs as landlords never recognised the defendant as a tenant by receipt of rent or otherwise.

2. Now, in second appeal four arguments have been submitted, of which the first embodies a new point which was not discussed in either of the judgments of the Courts below. It is this that the plaintiffs cannot get their injunction because the defendant has not invaded, or threatened to invade, their right to the enjoyment of any property and because the case does not come within Section 54 (d) of the Specific Relief Act, which says that a perpetual in junction may be granted where it is probable that pecuniary compensation cannot be got for the invasion of the plaintiff's right to property; So far as I am aware, this point is res Integra and this case must be decided according to its own facts and circumstances.

3. The learned. Vakil for the plaintiffs respondents relies, not only on the wording of Section 54 (d) bat also on Clause (e), which provides that a perpetual injunction may be granted where it is necessary to prevent a multiplicity of judicial proceedings, and his contention is that, on the findings of fact arrived at, the defendant is a trespasser and not a tenant.

4. As observed in Woodroffe's Law relating to Injunctions'(p. 359)--'The foundation of the Court's jurisdiction rests in the probability of irreparable injury, the inadequacy of pecuniary compensation and the prevention of a multiplicity of suits.' Again, The Courts may grant an. injunction in all cases of trespass according to their discretion, such discretion to be exercised according to the principles of the Specific Relief Act and the circumstances of the particular case,' (p. 361).

5. Now, the landlord's right to his property does not merely consist of a right to receive fair and equitable rent for it; but it is one of a bundle of rights which inheres in the rent-receiver. The landlord may enhance the rent; he may take khas possession of the property; or he may otherwise derive benefit from it other than the benefit of being a mere rent-receiver; he has, also, a right to choose his own tenant; otherwise, undesirable persons may be intruded into the tenancy who may either not pay rent or make the holding less profitable to the landlord in a variety of ways. The enforced recognition of the transferability of a holding is undoubtedly an injury which cannot be repaired. Once the transferability has been recognised, the character of the holding changes for ever. This case, therefore, appears to come within the meaning of irreparable injury.'

6. There is no finding of either of the lower Courts upon the question of pecuniary compensation and the reason is that such a question was not raised at an earlier stage of the litigation; but on the general equities of the case it would appear that the landlord cannot be compelled to accept pecuniary compensation in return for parting with the rights, or some of the rights, which he possessed. Clause (d) of Section 54 seems to contemplate the case of a trespasser being unable to pay pecuniary compensation. But I am not sure that this is not too a narrow view to be adopted on principles of equity. Clause (e) certainly favours the plaintiffs-respondents because, if they do not get the injunction now granted, they will be compelled to bring a suit to eject the defendant. That will undoubtedly result in a multiplicity of proceedings.

7. The only reported authority at all in point is Mr. John Stalkartt v. Gopal Panday 20 W.R. 168 : 12 B.L.R. 197 where Mr. Justice Phear pointed out that an injunction might be given against a share-holder who is occupying the land alone and keeping the plaintiff, another share-holder, off that land. It was there stated that the plaintiff could claim either to occupy the land jointly with the defendant or with the defendant's assignees or to insist that the land should not be occupied and used by any person (excepting always persons having a right of occupancy) otherwise than with his assent. The principle in this case may be usefully applied to the case under appeal. It think, therefore, that the first contention must be overruled.

8. The second contention is based on Section 56 (b), of the Specific Relief Act, but here the difficulty is concluded by authority. I refer to the case of Appu v. Banian 14 M. 425. In terms of Section 56 (5), an injunction cannot be granted to stay proceedings in a Court not subordinate to that from which the injunction is sought. That rule applies to pending proceedings, and here there is no proceeding against which the injunction has been granted. The plaintiffs came into Court alleging that the defendant had obtained his decree which had prejudiced them, and that he was trying to take possession. That constitutes sufficient ground for the relief asked for and is a valid cause of action upon which the plaintiffs' suit has been founded.

9. The remark, I have just made, disposes of the third contention raised on behalf of the defendant that there is no cause of action for the suit.

10. I think the fourth and last contention, that the defendant has been recognised by the landlord, is sufficiently answered 'by the findings of the lower Courts. The mere receipt of rent from a marfatdar does not involve any recognition of the marfatdar's personal right to a tenancy on transfer from an old tenant. The case to which my attention has been called Nabakumnari Debi v. Behari Lal Sen 11 C.W.N. 865 proceeded on a very different state of facts because there the dakhilas (receipts of rent) were given to transferees on their own account and not on account of transferees as 'marfatdars.'

11. The appeal, accordingly, fails on all the points urged and is dismissed with costs.


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