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Hari Mohan Dey Sarkar Vs. Ram NaraIn Dutt - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in14Ind.Cas.28
AppellantHari Mohan Dey Sarkar
RespondentRam NaraIn Dutt
Excerpt:
specific relief act (i of 1877), section 27 - evidence act (i of 1872), section 115--estoppel--rule of equity--occupancy-holding--landlord consenting to sale--subsequent lease to third party--title--priority. - .....the plaintiff. reliance has been placed for this contention on the provision of section 27 of the specific relief act which prpvides specific performance of a contract may be enforced against (a) either party thereto, (6) any other person claiming under him by a title arising subsequently to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract.' it is contended that this section embodies the only rule of equity that is applicable to a case of this kind and that so far as it does so, it virtually repeals any law of estoppel under section 115 of the evidence act or otherwise.4. we do not think that this contention is correct. section 115 of the evidence act and section 27 of the specific relief act are quite.....
Judgment:

1. The plaintiff was the mortgagee of a certain occupancy-holding. Having obtained a decree upon his mortgage, he took a hukumnamah from the defendant No. 6, who was the 14-anna landlord. After purchasing the property at the sale in execution of the mortgage-decree, he settled the amount of nazarana and paid a part of it to the defendant No. 6, the rest was to be paid after the sale had been held and confirmed. He made the purchase and, after having taken the settlement from the other co-sharers of the defendant No. 6, went to the defendant No. 6 to have the settlement from him on payment of the balance of the nazurani. He was, however, told that the land had already been leased out to the appellants. He, however, brought this suit, on a statement of these facts for recovery of the land, on the ground that the consent of the landlord to his purchase had given him a complete title and he could not be ousted by the landlord by any subsequent action of his.

2. Both the lower Courts decreed the suit of the plaintiff.

3. In second appeal, it is contended by the learned Vakil for the appellants that the Courts below have erred because the suit in its nature was virtually one for the specific performance of a contract, namely, that based on the hukumnamah and so long as it is not found that the defendants took with notice of the original contract, no decree can be passed in favour of the plaintiff. Reliance has been placed for this contention on the provision of Section 27 of the Specific Relief Act which prpvides specific performance of a contract may be enforced against (a) either party thereto, (6) any other person claiming under him by a title arising subsequently to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract.' It is contended that this section embodies the only rule of equity that is applicable to a case of this kind and that so far as it does so, it virtually repeals any law of estoppel under Section 115 of the Evidence Act or otherwise.

4. We do not think that this contention is correct. Section 115 of the Evidence Act and Section 27 of the Specific Relief Act are quite independent of each other and refer to, different sets of circumstances. Section 115 of the Evidence Act is a general section to estop certain parties from pleading certain facts and there is nothing either in the Evidence Act or in the Specific Relief Act which indicates that it was intended to repeal or alter any portion of the Evidence Act by the Specific Relief Act. Nor does Section 27 of the Specific Relief Act preclude the Court from considering, independently of that Act, any question of equity which might arise upon the facts of each case in favour of or against any of the parties thereto. The provisions of Section 115 of the Evidence Act are particularly applicable to the facts found in this case. The landlord defendant No. 6 made a certain declaration to the plaintiff in consequence of which the plaintiff made a purchase and also took the consent of the other landlords, presumably on the payment of consideration. The plaintiff became the owner of the land with the consent previously received of the defendant No. 6. The appellants before us, who derived their title under a subsequent grant from the landlord, defendant No. 6, cannot be heard to say that the plaintiff derived no title from the hukumnamah.

5. In this view of the case, the suit of the plaintiff has been rightly decreed.

6. The appeal is, therefore, dismissed with costs.


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