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Habibulla Gazi Vs. Ananda Charan Kajuri and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1934Cal269
AppellantHabibulla Gazi
RespondentAnanda Charan Kajuri and ors.
Excerpt:
- .....the decrees in execution of which the lands in suit were purchased by the plaintiffs were not rent decrees, and the sales held in execution of those decrees were not rent sales, and did not pass the tenures to which the lands in suit appertained. the defendants further contended that they had protected interests in the lands in suit, and their interests were not affected by the sale of the tenures.2. the court of first instance dismissed the suits giving rise to second appeals nos. 1884, 1885 and 1889 on the ground that regard being had to the proceedings in execution of rent decrees obtained against mafijuddi in which there was an amendment of the decree sought to be executed, the amendment having been ultra vires, it rendered the sale in execution of the decree a nullity. there.....
Judgment:

1. S. A. No. 1883 to 1888-The plaintiffs in the suits out of which these appeals have arisen, prayed for khas possession of the lands in suit, on declaration of their title to the same. Halves of the lands cover the subject-matter of the suit in which Second Appeals Nos. 1884, 1885 and 1887 have arisen while the other halves were covered by suits giving rise to Second Appeals Nos. 1883, 1886 and 1888. The claims made by the plaintiffs in the suits were resisted by the contesting defendants, whose case was that the plaintiffs were not entitled to get khas possession of the lands in suit. According; to the defendants the decrees in execution of which the lands in suit were purchased by the plaintiffs were not rent decrees, and the sales held in execution of those decrees were not rent sales, and did not pass the tenures to which the lands in suit appertained. The defendants further contended that they had protected interests in the lands in suit, and their interests were not affected by the sale of the tenures.

2. The Court of first instance dismissed the suits giving rise to Second Appeals Nos. 1884, 1885 and 1889 on the ground that regard being had to the proceedings in execution of rent decrees obtained against Mafijuddi in which there was an amendment of the decree sought to be executed, the amendment having been ultra vires, it rendered the sale in execution of the decree a nullity. There was therefore no sale under the law, in which the plaintiffs could be said to have purchased the lands in suit. The decision come to by the trial Court was reversed on appeal, and the learned Subordinate Judge in the Court of appeal below held on the materials before him, that the amendment made at the instance of Mafijuddi against whom the decree for rent was obtained, had not the effect of making the sale in execution of the decree a nullity. On the merits of the cases, the Court of appeal below came to the conclusion on evidence before it, that the defendants had not established that they had protected interests in the lands in suit, and passed decrees for khas possession against the contesting defendants.

3. The position which is clear from the judgments of the Courts below is that rent decrees were passed against Mafijuddi, the registered tenant in respect of a permanent tenure; and this Mafijuddi who was the muttawali of a wakf estate created by his father, fully represented the tenancy in question, so far as the landlords were concerned. Mafijuddi was sued as the tenant responsible for payment of rent due in respect of the tenancy which according to the case of the contesting defendants appertained to the wakf estate of which Mafijuddi was the muttawali. If the tenancy was represented by Mafijuddi, as it was the case, upon the findings arrived at by the Court of appeal below, the tenancy passed at the sale held in execution of the decrees for rent payable by Mafijuddi in respect of the same. The fact that Mafijuddi was not described as the muttawali, was of no consequence, seeing that the tenancy was completely represented by Mafijuddi. The position created by Mafijuddi's own acts, he having been anxious to have the decree for rent executed against him as the muttawali, could not change the nature of the rent decree passed against him representing the tenancy. In the above view of the cases, the suits in which Second Appeals Nos. 1884, 1885 and 1887 and the other suits giving rise to Second Appeals Nos. 1883, 1886 and 1888 stand on the same footing. The decrees for rent obtained by the landlords against Mafijuddi, without the addition of the description of muttawali, were effective rent decrees, and the sales held in pursuance of those decrees were sales in execution of rent decrees as contemplated by the Bengal Tenancy Act. The sales held, passed the interest of the contesting defendants, unless it was in the nature of protected interest which could not be avoided by purchases in the position of the plaintiffs in the different suits in which these appeals have arisen. So far as the nature of the interests of the contesting defendants were concerned the Court of appeal below has on a review of the materials on the record come to the conclusion on facts that the contesting defendants in the suit had failed to establish their case before the Court that they had any interest which could be called protected interest under the law, in any portion of the lands in suit, excepting so much of the C. S. Plot No. 1707 as is covered by P. S. Plot No. 104. The above exception relates to the lands in suit in which Second Appeals Nos. 1885 and 1886 have arisen.

4. The conclusion based on findings of fact arrived at by the Court of appeal below could not be challenged; but it was argued in support of Second Appeals Nos. 1884, 1885 and 1887, that the lower appellate Court having reversed the decision of the trial Court on a preliminary point, should have sent the case back to the Court of first instance for decision on the merits. In view of the connection of the different suits before the Court with each other, and regard being also had to the position that the evidence on the record was complete in regard to all the cases, no useful purpose could have been served by directing a remand and we are convinced that the procedure was correct, regard being had to the facts and circumstances of the cases before us. The conclusions arrived at by the Court of appeal below on the evidence before it, appear to us to be unimpeachable in second appeal.

5. A point was raised in support of the Second Appeals Nos. 1884, 1885 and 1887, that there was no justification for the Court below in the matter of reception of additional evidence at the appellate stage. It appears that records in execution proceedings were before the Court, and parts of those records were admitted in evidence and marked as exhibits by the lower appellate Court. All this was done with a view to ascertaining the real position so far as the so-called amendment of the decree for rent passed against Mafijuddi in which he was not described as the muttawali. In view of the decision arrived at by us on the question of the representation of the tenancy in question by Mafijuddi as indicated above, we do not attach any importance to the state of things showing clearly that it was at Mafijuddi's instance that the amendment of the description was made by the Court, executing the decree for rent. In our judgment the reception of additional evidence of the nature mentioned above, did not vitiate the decision of the lower Court in any way, and we are not also of opinion that the additional evidence referred to by the Court below could affect the right decision of the question of representation of the tenancy in question. The result of the conclusions arrived at by us, on the question raised in support of the appeals is that the appeals fail, and are dismissed with costs to the plaintiffs-respondents. The hearing fee is assessed at 1 gold mohur in each of the six appeals.

6. S. A. No. 1889.-This appeal has arisen out of a suit for rent, in which the question in controversy between the parties concerned was whether the relationship of landlord and tenant existed as between the plaintiffs and the defendants in the suit. The question so raised was dependent on the decision on the question of title to the lands in respect of which rent was claimed, as raised in the suits out of which Second Appeals Nos. 1883 to 1888 of 1931 arose. In view of our decision in those appeals, and regard being had to the concurrent findings of fact arrived at by the Courts below against the plaintiffs-appellants to this Court, this appeal must be dismissed, and we direct accordingly. There is no order as to costs in this appeal.


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