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Srimati Charu Bala Dasi and ors. Vs. Srimati Nihar Kumari Dasi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal831
AppellantSrimati Charu Bala Dasi and ors.
RespondentSrimati Nihar Kumari Dasi and ors.
Cases ReferredGangadhar Muradi v. Banabashi Padihari
Excerpt:
- .....paid as consideration with interest.2. defendants 3 to 8 contended that they were tenants of the land in suit, which formed, according to them, part of a tenure of 22 bighas odd. they further alleged that defendant 10 and surja held the land under them. it was further alleged that defendant 10 and surja held the land through defendants 1 and 2. the court of first instance came to the conclusion that the plaintiff had failed to show that the land in suit formed a holding belonging to defendant 10 and surja. he held that the land was really part of the tenancy set up by defendants 3 to 8. in that view the learned munsif gave a decree to the plaintiff for the recovery of the money under the condition in the conveyance to which i have already referred. this decree for money was made.....
Judgment:

Chakravarti, J.

1. This is an appeal by defendants 3 to 8 and arises out of a suit for declaration of the plaintiff's title and for recovery of possession of certain land described in the schedule to the plaint with mesne profits. The facts shortly stated are these : Defendant 10 and one Surja were the owners of a jote consisting of 2 bighas 16 cottas of land. They sold it to defendant 9 on the 6th May 1910. Defendant 9 in his turn sold the land on the 11th December 1916, to the plaintiff with a condition that if the purchaser was ousted or otherwise deprived of the land the purchaser would be entitled to recover the amount paid as consideration with interest.

2. Defendants 3 to 8 contended that they were tenants of the land in suit, which formed, according to them, part of a tenure of 22 bighas odd. They further alleged that defendant 10 and Surja held the land under them. It was further alleged that defendant 10 and Surja held the land through defendants 1 and 2. The Court of first instance came to the conclusion that the plaintiff had failed to show that the land in suit formed a holding belonging to defendant 10 and Surja. He held that the land was really part of the tenancy set up by defendants 3 to 8. In that view the learned Munsif gave a decree to the plaintiff for the recovery of the money under the condition in the conveyance to which I have already referred. This decree for money was made against defendant 9.

3. There was an appeal against that decree by defendant 9. In that appeal the plaintiff, as also the other defendants, were impleaded as respondents. The learned Additional District Judge who heard the appeal came to the conclusion that the land in suit really formed part of the holding which belonged to defendant 10 and Surja, and that it was in fact the holding of 2 bighas 16 cottas which was sold by defendant 10 and Surja to defendant 9 who also in his turn sold it to the plaintiff. The points which were urged on behalf of the defendant-appellant in the Court of the learned Additional District Judge were whether the land in suit formed the jote of 2 bighas 16 cottas and as such belonged to the plaintiff, whether the plaintiff's suit was barred by general or special law of limitation and to what mesne profits, if any, the plaintiff was entitled.

4. On the first point the lower appellate Court came to the conclusion, as I have stated, that the land in suit was really the land of the jote of 2 bighas 16 cottas and, therefore, the plaintiff had acquired a good title under his conveyance. The learned Additional District Judge further held that the suit was not barred by limitation. On these findings he reversed the decree of the learned Munsif and gave a decree to the plaintiff for the recovery of possession of the land in suit with mesne profits which he assessed at Rs. 68-14-6.

5. In appeal before us the learned advocate for the appellant has urged, first, that the learned Additional District Judge had no authority under Order 41, Rule 33 to make a decree in favour of a plaintiff who had preferred no appeal against the decree of the first Court; secondly, that the suit was barred by the special law of limitation; and lastly that, at any rate the learned Additional District Judge ought not to have given any decree for mesne profits. As to the first point, it appears to us that the learned Additional District Judge was authorised under the provisions of Order 41, Rule 33 to pass a decree on the findings arrived at by him in favour of the plaintiff who brought the suit with alternative prayer either for recovery of possession of the land in suit with mesne profits or if that fails for recovery of the compensation due under the condition in the conveyance, when the learned Judge found that the plaintiff was not entitled to the alternative prayer which was granted by the Court of first instance it was his duty to grant, if the findings justify, the other relief in order to adjust the rights of the parties in accordance with justice, equity and good conscience as was pointed out in the case of Gangadhar Muradi v. Banabashi Padihari [1914] 22 C.L.J. 390. It appears to me that Rule 33, Order 41, Civil P.C., is primarily intended for a contingency like this : when there are two alternative prayers made by the plaintiff he may be well satisfied with one of the reliefs obtained by him. But if on appeal that relief is denied to him in justice the plaintiff ought to be given the other alternative relief if the findings arrived at by the lower appellate Court justify such a decree. I think, therefore, the first point fails.

6. As regards the second point : it appears that there is a clear finding by the learned Additional District Judge that the dispossession was practically made by defendants 1 and 2 and not by landlord. That being so the special rule of limitation has no application.

7. As to the last point : it appears to me that if the plaintiff is entitled to the alternative relief as prayed for in the plaint, there is no reason why, when a decree is made under Order 41, Rule 33, Civil P.C., the plaintiff should not get all that he is entitled to under the judgment arrived at by the Court of appeal below.

8. The result is that this appeal fails and is dismissed with costs.

Panton, J.

9. I agree.


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