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Panchu Gopal Chattopadhya and anr. Vs. Srimati Matangini Debi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal560,64Ind.Cas.581
AppellantPanchu Gopal Chattopadhya and anr.
RespondentSrimati Matangini Debi
Cases ReferredGur Narayan v. Sheo Lal Singh
Excerpt:
easement - house--obstruction to light and air--benamidar entitled to sue. - 1. this is an appeal under clause 15 of the letters patent from the judgment of mr. justice huda in a suit instituted for the removal of an obstruction to access of light and air in a house claimed by the plaintiff as her own property. the suit was decreed by the trial court. on appeal, the subordinate judge dismissed the suit, on the ground that the plaintiff was benamdar of her husband and could not consequently maintain a suit for enforcement of right of user of light and air. on appeal mr. justice huda has set aside that decision and has remanded the case for consideration on the merits. the judgment of mr. justice huda is based on the ground that the plaintiff had a right of residence in the house as the widow of the late owner and that that alone was sufficient to entitle her to.....
Judgment:

1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Huda in a suit instituted for the removal of an obstruction to access of light and air in a house claimed by the plaintiff as her own property. The suit was decreed by the Trial Court. On appeal, the Subordinate Judge dismissed the suit, on the ground that the plaintiff was benamdar of her husband and could not consequently maintain a suit for enforcement of right of user of light and air. On appeal Mr. Justice Huda has set aside that decision and has remanded the case for consideration on the merits. The judgment of Mr. Justice Huda is based on the ground that the plaintiff had a right of residence in the house as the widow of the late owner and that that alone was sufficient to entitle her to maintain the suit. On behalf of the appellant it has been argued that this aspect of the case was propounded for the first time in this Court and should not have been considered. We need not examine whether this objection is or is not well founded, because it is plain that the decree of the Subordinate Judge cannot be supported on the ground assigned by him. The decision of the Judicial Committee in the case of Gur Narayan v. Sheo Lal Singh 49 Ind. Cas. 1 : 23 C.W.N. 52 : 17 A.L.J. 66 : 86 M.L.J. 68 : 9 L.W. 335 : 1 U.P.L.R. (P.C.) 1 46 C. 566 : 21 Bur. L.T. 122 : 46 I.A 1 (P.C.) shows that the benamdar has no beneficial interest in the property that stands in his name, but he represents in fact the real owner, and so far as their relative legal position is concerned, he is a mere trustee for him. In this view it is difficult to understand why in such circumstances an action cannot be maintained in the name of the benamdar in respect of the property, although the beneficial owner is no party to it. The bulk of judicial opinion is in favour of the proposition that in a proceeding by or against a benamdar, the person beneficially entitled is fully affected by the rule of res judicata. It is open to the latter to apply to be joined in the action, but whether he is made a party or not, a proceeding by or against his representative, in its ultimate result, is fully binding on him. On this principle it is clear that the fact that the plaintiff is a benamdar in respect of the house to which, she alleges, the right of easement of light and air has been annexed, is not a ground for dismissal of her suit. We do not decide whether the evidence establishes that such right has, in this case, been acquired in accordance with law. We confine our decision to one point, namely, that the fact that the plaintiff is a benamdar does not disentitle her to maintain this suit.

2. The result is that the order of remand made by Mr. Justice Huda will stand but not for the reasons assigned by him, and the appeal will stand dismissed without costs.


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