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Basanta Kumari Chaudhubani and anr. Executrices of the Wlll of Late Sasi Bhusan Chaudhuri Vs. Krishna Nalini Dassya And, on Here Death, Bangeswar Ghose and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in59Ind.Cas.312
AppellantBasanta Kumari Chaudhubani and anr. Executrices of the Wlll of Late Sasi Bhusan Chaudhuri
RespondentKrishna Nalini Dassya And, on Here Death, Bangeswar Ghose and ors.
Excerpt:
landlord and tentant - rent, suit for--swrreder and dispossession, allegations of, disproved--landlord, failure of, to identify holdings, whether sufficient to deprive him of rent. - .....the defendants had originally held three jamas of rs. 4, rs. 6 and rs. 12, respectively, under the plaintiffs' predecessor-in-interest, they had surrendered the same, and that the lands described in the plaint were not the lands of the said three jamas but were comprised partly in other holdings held by the defendants, under other landlords, partly within their lakheraj and partly within the holding of rs. 19.9.101/2. of this last holding it was alleged that soshi bhusan has taken khas possession in whole or in part.5. both courts below have found that the alleged surrender and the alleged dispossession have not been proved. but, on the finding that the plaintiff had failed to establish the identity of the holdings, the court of first instance dismissed the suit as regards the holding of.....
Judgment:

1. This appeal arises out of a suit for arrears of rent. The plaintiffs sue as patnidars of a debutter mahal dedicated to a deity spoken of as Kali Doyamoyi. It appears that the predecessors of the plaintiffs obtained this patni from one Manik, the shebait of the idol, sometime in the year 1885. In 1889 the patni was sold for arrears and bought in by Manik, who next transferred it in the year 1890 to one Panchuram whose son Soshi Bhusan sold to the plaintiff.

2. In this suit we are concerned with four holdings bearing, annual rentals of Rs. 6, Rs. 12, Rs. 4 and Rs. 19.9.101/2. respectively.

3. In a suit brought in 1902 in respect of these same holdings Soshi Bhusan obtained a decree against the predecessor of the present defendant but a second suit brought in 1904 was dismissed on the ground that the patni had merged in the superior interest on the purchase by Manik in 1889 and that the conveyance of the patns to Panahuram conferred no title upon him. The plaintiffs had the defeat in their title remedied, with retrospective effect and now bring the present suit.

4. The main defense was that, though the defendants had originally held three jamas of Rs. 4, Rs. 6 and Rs. 12, respectively, under the plaintiffs' predecessor-in-interest, they had surrendered the same, and that the lands described in the plaint were not the lands of the said three jamas but were comprised partly in other holdings held by the defendants, under other landlords, partly within their lakheraj and partly within the holding of Rs. 19.9.101/2. Of this last holding it was alleged that Soshi Bhusan has taken khas possession in whole or in part.

5. Both Courts below have found that the alleged surrender and the alleged dispossession have not been proved. But, on the finding that the plaintiff had failed to establish the identity of the holdings, the Court of first instance dismissed the suit as regards the holding of Rs. 6 and Rs. 12 and the Court of first appeal further dismissed the suit as regards the holding of Rs. 19 also.

6. The plaintiffs now appeal to this Court, and we are of opinion that he must succeed.

7. It is admitted by the defendants that all four holdings had a real existence, and were held by their predecessor in interest under the predecessor in title of the plaintiffs. That also was decided between the parties in the suit of 1902. The allegations of surrender and dispossession having been disbelieved it follows that they are still in possession of the holdings, and if they, the defendants, have mixed up the lands of the holdings with their other lands that is no reason why the plaintiffs should not have their rents.

8. The situation, quality and boundary of the lands of the several holdings may be determined in appropriate proceedings under Section 158 of the Bengal Tenancy Act.

9. For the foregoing reasons, this appeal is decreed with costs. Plaintiffs will have a decree for the rents of the four holdings at the rate of Rs. 19.9.101/2 pandas, Rs. 4, Rs. 6 and Rs. 12, respectively, for the period in suit, with cusses and damages at 25 per cent. and proportionate costs in all Courts.

10. The, cross-appeal was not mentioned or pressed and is, therefore, dismissed: No order as to costs.


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