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Khirode Chandra Ghose and anr. Vs. Midnapore Zemindary Company, Limited, and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal1028(2),46Ind.Cas.507
AppellantKhirode Chandra Ghose and anr.
RespondentMidnapore Zemindary Company, Limited, and ors.
Excerpt:
landlord and tenant - lease for digging up tank for benefit of men and cattle--tank silted up--forfeiture of lease. - .....cattle. i do not profess to know, but mr. roy chowdhury tells us that this is the common form of leases of tanks in this country. whether that is so or not i do not know and, in the present case, that does not matter. the present suit is a suit for ejectment on the ground that the lessee has forfeited the lease by reason of there having been a breach of the conditions contained therein. there are many answers to that. first of all, there was no obligation cast on the lessee to maintain the tank in a good condition. the only thing he had to do was to dig it up so as to benefit men and cattle and dedicate the same in order to please the almighty. there was nothing stated in the lease which compelled the lessee to maintain that condition for ever; and if one reads the lease that way, it.....
Judgment:

Fletcher, J.

1. This is an appeal by the defendants Nos. 1 and 2 against the decision of the learned District Judge of Midnapore, dated the 25th May 1916, reversing the decision of the Munsif of Gorbetta. The case is a perfectly short and simple one. The plaintiffs sued to recover possession of a piece of land let out on lease to the predecessor of the defendants-appellants. The only question is whether on the terms of that lease in the events that have happened the plaintiffs are entitled to recover possession. The lease is in a very few words. It states that the lessee being desirous to excavate a tank and having filed an application therefor, according to the desire of the lessor 7 bighas 18 cottas of land is granted within certain boundaries and that the lessee, for the benefit of men and cattle, digging up a tank and dedicating it with a view to please God, is to enjoy the same from generation to generation with great felicity. The view of the plaintiff Company is this: That this was not a lease for the benefit of the lessee to be enjoyed by him and his descendants from generation to generation in great felicity, but that the primary object of the lease was the digging up of a tank for the benefit of men and cattle and dedicating the same with a view to please God. It is said that there has been a breach of those conditions, namely, that the tank has now become silted up and that, therefore, it is of no use to men and cattle. I do not profess to know, but Mr. Roy Chowdhury tells us that this is the common form of leases of tanks in this country. Whether that is so or not I do not know and, in the present case, that does not matter. The present suit is a suit for ejectment on the ground that the lessee has forfeited the lease by reason of there having been a breach of the conditions contained therein. There are many answers to that. First of all, there was no obligation cast on the lessee to maintain the tank in a good condition. The only thing he had to do was to dig it up so as to benefit men and cattle and dedicate the same in order to please the Almighty. There was nothing stated in the lease which compelled the lessee to maintain that condition for ever; and if one reads the lease that way, it certainly does give force to the clause that the lessee should enjoy the same from generation to generation in great felicity. There is another answer. This is an action to recover possession of land, on the breach of an express condition. There is no clause of re-entry and the lessor cannot re enter where there is no clause authorising that. I think on the whole that this is a clear cane in which no re-entry can be made. It is suggested in the present case that we should adjudicate on the question as to whether this is a charitable trust for the benefit of men and cattle in the neighbourhood and whether the lessee is entitled to permit this tank to remain as a nuisance. The first point obviously we cannot adjudicate on in this suit. On the second point, if the tank has really become a nuisance, there are suitable provisions to have the nuisance abated. I think the present appeal ought to be allowed and the judgment and decree passed by the learned District Judge set aside and the decision of the Munsif restored with costs to the appellants in this Court and in the lower Appellate Court.

Smither, J.

I agree.


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