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Byomkesh Chakrabarti Vs. Haladhar Mandal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata
Decided On
Judge
Reported in31Ind.Cas.700
AppellantByomkesh Chakrabarti
RespondentHaladhar Mandal and ors.
Cases Referred and Kedar Nath v. Ariha Chunder Roy
Excerpt:
bengal tenancy act (viii of 1885) schedule iii, article 6 - decree for share of rent by one co-sharer without making other co-sharers parties-execution--limitation. - .....rent without making the other co-sharers parties, is governed by article 6 of schedule iii of the bengal tenancy act. there is certainly one case which favours the contention of the appellant. that is the case of k.b. butt v. gostha behary bhuiya 17 ind. cas. 207 : 16 c.l.j. 379 : 16 c.w.n. 1006. that case, however, was not argued for the respondent and the learned judges said that that was a suit to which provisions of the bengal tenancy act did not apply however, there has been a number of cases both preceding and subsequent to that in all of which, the judges took a contrary view. these cases are thakomoni dasi v. mohendra nath 3 ind. cas. 389 : 10 c.l.j. 463, mrilyunjoy v. bhola nath 20 ind. cas. 833 : 18 c.l.j. 81 khetra mohan v. mohim chandra das 18 ind. cas. 595 : 17 c.w.n. 518.....
Judgment:

1. This appeal arises from a decision holding that an application for execution of a decree obtained by a co-sharer landlord for his share of the rent without making the other co-sharers parties, is governed by Article 6 of Schedule III of the Bengal Tenancy Act. There is certainly one case which favours the contention of the appellant. That is the case of K.B. Butt v. Gostha Behary Bhuiya 17 Ind. Cas. 207 : 16 C.L.J. 379 : 16 C.W.N. 1006. That case, however, was not argued for the respondent and the learned Judges said that that was a suit to which provisions of the Bengal Tenancy Act did not apply However, there has been a number of cases both preceding and subsequent to that in all of which, the Judges took a contrary view. These cases are Thakomoni Dasi v. Mohendra Nath 3 Ind. Cas. 389 : 10 C.L.J. 463, Mrilyunjoy v. Bhola Nath 20 Ind. Cas. 833 : 18 C.L.J. 81 Khetra Mohan v. Mohim Chandra Das 18 Ind. Cas. 595 : 17 C.W.N. 518 and Kedar Nath v. Ariha Chunder Roy 5 C.W.N. 763 : 29 C. 54. In all of these cases, it has been held that the object of the amendment of the Bengal Tenancy Act I of 1907 was to introduce words which, properly interpreted, would make the Article applicable to the question in controversy in this case. We are inclined to agree with this latter opinion and to accept the grammatical construction of the words as given in the Article after the amendment. The contention, therefore, that this Article does not apply, fails.

2. It is next contended that this view of the law is very hard upon the co-sharer landlord, who is bound by the rule of shorter limitation in this Article if while he is unable to avail himself of the provisions of the Act for getting a complete remedy against his tenant. That may be so in a case of this kind, but after the amendment, a co-sharer landlord has an option of bringing a suit under, Section 148A, which would enable him to avail himself of all the provisions of the Act in favour of the entire body of landlords.

3. The next contention is that this application should be considered as a continuation of the previous application. The previous application is not before us and there are no materials on the record upon which we can say that this was ever intended to be a continuation of the previous application.

4. The result is that this application is dismissed.

5. As, however, at the time when the application was made there was a decision in favour of the appellant, we make no order as to costs in this appeal.


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