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Sheikh Mahomed Tagu and ors. Vs. Choa Lal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.750
AppellantSheikh Mahomed Tagu and ors.
RespondentChoa Lal
Cases ReferredKrishna Chandra Datta Choudhury v. Khiran Bajania
Excerpt:
landlord and tenant - lease by tenant for 5 years--portion of holdiny--bengal tenancy act (viii of 1885), section 85--abandonment and surrender--right of tenant's lessee. - .....his rights under that act. it has, however, been argued on behalf of the landlords that there is a term in the lease which provides that, if a certain sum be not paid to the lessor, then the lease will run on indefinitely. as to the validity of this term, having regard to the provisions of section 85 of the bengal tenancy act, it is not necessary for us to express any opinion in the present case. but it will be for the malik defendants, if so advised, to take such action as they think the law justifies them in taking after the expiry of the nine years. a reference has been made to certain cases, one of which is that of krishna chandra datta choudhury v. khiran bajania 10 c.w.n. 499 : 3 c.l.j. 222, to support the view that, where a ryot grants an usufructuary mortgage of the whole of his.....
Judgment:

1. The present plaintiff-repondent brought a suit to recover possession of land which, he said, he held from the tenant under an ijara for five years. He alleged that he had been dispossessed of this land by the malik defendants. The Court of first instance dismissed the suit, but, on appeal, the lower appellate Court has held that the plaintiff is entitled to recover possession of the land from the defendants and has given him a decree for recovery of possession with costs. The malik defendants have appealed and, in support of the appeal, it has been contended that the lease by the tenant to the plaintiff was in contravention of his rights as a tenant and that it amounted to an abandonment of that portion of the holding which he had leased to the plaintiff. In our opinion, this contention cannot be held to be sound. The lease was for a term of five years only and that term had not expired on the date when the present suit was instituted. The law distinctly provides that a ryot has power to grant a sub-lease, though that power is restricted by Section 85 of the Bengal Tenancy Act to a term of nine years. In the present instance, the lease granted to the plaintiff has not yet run for that period and, therefore, there is nothing in the provisions of Section 85 of the Bengal Tenancy Act to justify a Court in holding that, in granting the lease to the plaintiff, the tenant acted in contravention of his rights under that Act. It has, however, been argued on behalf of the landlords that there is a term in the lease which provides that, if a certain sum be not paid to the lessor, then the lease will run on indefinitely. As to the validity of this term, having regard to the provisions of Section 85 of the Bengal Tenancy Act, it is not necessary for us to express any opinion in the present case. But it will be for the malik defendants, if so advised, to take such action as they think the law justifies them in taking after the expiry of the nine years. A reference has been made to certain cases, one of which is that of Krishna Chandra Datta Choudhury v. Khiran Bajania 10 C.W.N. 499 : 3 C.L.J. 222, to support the view that, where a ryot grants an usufructuary mortgage of the whole of his holding to another person and puts the mortgagee in possession, such a transaction amounts to an abandonment of the holding. This, no doubt, may be the case ; but the ruling in question has no applicability to the facts or the present case. Here the lease was not of the whole holding ; neither did the lessor place the lessee in possession of the whole holding nor did he do anything to justify the Court in arriving at the conclusion that the lessor intend to abandon the holding. In these circumstances, we hold that the lease granted to the plaintiff was a lease which the lessor was within his rights in granting and that the lower appellate Court was perfectly justified in giving to the lessee, the plaintiff, a decree to recover possession from the landlords who without any right had ejected him from the land. The result, therefore, is that we dismiss the appeal with costs.


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