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Tamij Mandal Vs. Golam Rabbani Biswas - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.720
AppellantTamij Mandal
RespondentGolam Rabbani Biswas
Cases Referred and Basarat Mandal v. Sabulla Mandal
Excerpt:
bengal tenancy act (viii of 1885) - tenure--transferability--purchasers from same tenant--competency to question validity of transfer. - .....of a licensee from some of the representatives of alam. as such they are not, in our opinion, entitled to question the validity of the purchase of the plaintiff from two of the representatives of alam on the ground that the holding was not transferable. the view we take is supported by the decision of the court in the case of ayen-ud-din nasya v. sirish chandra benerji 11 c.w.n. 76, which is in accord with the two earlier decisions in ambica nath v. aditya nath 6 c.w.n. 624 and basarat mandal v. sabulla mandal 2 c.w.n. cclxxix. the first contention of the appellant must consequently fail.3. in so far as the second contention of the appellant is concerned, the learned vakil for the respondent has invited our attention to the circumstance that no issue was raised in the court of first.....
Judgment:

1. This is an appeal on behalf of the first five defendants in a suit for recovery of possession of a holding purchased by the plaintiff-respondent from two persons, Fakir and Drajtulla, the descendants of one Alam Mandal, who was the original owner of the property. The Court of first instance dismissed the suit on the ground that the plaintiff had failed to prove that the conveyance which was the foundation of the title was for consideration. Upon appeal the learned Subordinate Judge has reversed that finding. He has held that no question of transferability arises in the circumstances of the present case. He has further held that the question of limitation also does not arise in the suit. In this view, he has given the plaintiff a decree for 3/4ths share of the holding on the ground that his vendors were entitled to a 3/4th share of the property.

2. On behalf of the defendants, the decree of the Subordinate Judge has been assailed on two grounds, namely, first, that the question of transferability is open for discussion in this litigation, and, secondly, that in any event the plaintiff is not entitled to a decree for 3/4th share of the holding. In so far as the first point is concerned, we are of opinion that there is no foundation for the argument of the learned Vakil for the appellant. The defendants are found to have come into possession of the property by the license of the widows of Jamer and Goberdhone, the two sons of Alam, At one stage of the litigation they set up a conveyance from the defendant No. 6 and the mother of defendant No. 7. At a later stage of the litigation, however, they claimed title to the land from the superior landlord which they failed to establish. Consequently, they cannot claim title by purchase from any of the representatives of Alam nor can they successfully claim title by adverse possession against them, inasmuch as they were placed in possession of the property by the license of the widows of the two sons of Alam. Their position, therefore, is that of a licensee from some of the representatives of Alam. As such they are not, in our opinion, entitled to question the validity of the purchase of the plaintiff from two of the representatives of Alam on the ground that the holding was not transferable. The view we take is supported by the decision of the Court in the case of Ayen-ud-din Nasya v. Sirish Chandra Benerji 11 C.W.N. 76, which is in accord with the two earlier decisions in Ambica Nath v. Aditya Nath 6 C.W.N. 624 and Basarat Mandal v. Sabulla Mandal 2 C.W.N. CCLXXIX. The first contention of the appellant must consequently fail.

3. In so far as the second contention of the appellant is concerned, the learned Vakil for the respondent has invited our attention to the circumstance that no issue was raised in the Court of first instance upon the question of extent of the shares of Fakir and Drajtulla, the vendors of the plaintiff. Under these circumstances, we are of opinion that it was not open to the Subordinate Judge to discuss the question of their shares.

4. The result, therefore, is that the decree made by the Court below must be affirmed and this appeal dismissed with costs.


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