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Shib Chandra Mookerjee Vs. Krishna Chandra Basu and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in9Ind.Cas.576
AppellantShib Chandra Mookerjee
RespondentKrishna Chandra Basu and ors.
Excerpt:
injunction - restraining defendant from executing decree obtained by fraud--purchase of jama by plaintiff--recognition of purchase by defendant--subsequent suit for rent brought against former tenant--fraud. - .....against the defendants nos. 3 and 4, predecessors-in-interest of the plaintiff. if in the suit for rent brought by them against the plaintiff the claim was in respect of both the jamas, there was clearly a recognition by them of the purchase by the plaintiff, and merely because the plaintiff as defendant in that suit had set up successfully an apparently fraudulent defence, there would be no justification for the landlords to commit fraud on the plaintiff by obtaining a decree for rent against his vendors after they themselves had recognised his purchase. it is obvious from the proceedings in the court below that this fundamental point in the case has been overlooked and has not been properly tried. if, as a matter of fact, there has been recognition of the plaintiff by the landlords.....
Judgment:

1. This is an appeal on behalf of the plaintiffs in a suit for an injunction to restrain the first two defendants from executing a decree for rent, obtained by the latter against the defendants Nos. 3 and 4, in so far as the holding in the hands of the plaintiff is concerned.

2. The case for the plaintiff was that the decree in question had been obtained fraudulently, and consequently the landlords were not entitled to execute it against the holding which, had been purchased by the plaintiff from defendants Nos. 3 and 4, The Courts below have dismissed the suit on the ground that the alleged fraud has not been established. But the facts found in the judgment of the learned Subordinate Judge do not support his conclusion.

3. It appears that the plaintiff had purchased two jamas, one of which it is said bear the rental of Rs. 110 and odd and the other Rs. 23 and odd. The learned Judge has found that after the purchase by the plaintiff, there were negotiations between him and the landlords for kharij. While those negotiations were going on, the gomashta gave the plaintiff some rent receipts with the jamas amalgamated, but the rents due on them were left blank. If the gomashta had authority to receive rent from the plaintiff and if in amalgamating the jamas he did not act in excess of his authority, clearly there was recognition by the landlords of the purchase by the plaintiff. Consequently it would not be open subsequently for them to bring a suit for rent against the original tenants. It has also been stated to us that the landlords brought a suit for rent against the plaintiff in which rent was claimed at the rate of Rs. 123 and odd. In that suit, rent was decreed against the plaintiff for Rs. 110 and odd. The landlords subsequently brought a suit for rent in respect of the second jama against the defendants Nos. 3 and 4, predecessors-in-interest of the plaintiff. If in the suit for rent brought by them against the plaintiff the claim was in respect of both the jamas, there was clearly a recognition by them of the purchase by the plaintiff, and merely because the plaintiff as defendant in that suit had set up successfully an apparently fraudulent defence, there would be no justification for the landlords to commit fraud on the plaintiff by obtaining a decree for rent against his vendors after they themselves had recognised his purchase. It is obvious from the proceedings in the Court below that this fundamental point in the case has been overlooked and has not been properly tried. If, as a matter of fact, there has been recognition of the plaintiff by the landlords either by reason of receipt of rent from him or by reason of a suit having been brought against him in respect of both the jamas, clearly, the decree obtained by the landlords against defendants Nos. 3 and 4 cannot be allowed to be executed against the property in the hands of the plaintiff.

4. The result, therefore, is that this appeal must be allowed. The decree of the District Judge is set aside and the case is remanded to him in order that the question indicated as also any other question that may arise between the parties on the pleadings may be considered and decided. If the learned District Judge finds that additional evidence is necessary to enable him to decide the questions which require consideration, it will be open to him to give the necessary directions.

5. We may add that it would be obviously desirable to call for the records of the previous suit for rent so that the plaint, the written statement and the judgment and decree may be before the Court.

6. The costs of this appeal will abide the result.


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