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Hari Mohan Modak Vs. Rameswar Das and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in64Ind.Cas.737
AppellantHari Mohan Modak
RespondentRameswar Das and ors.
Cases ReferredDurga Prasad Singh v. Rajendra Narayan Bagchi
Excerpt:
ejectment - property of idol--de facto manager can bring suit--landlord and tenant--encroachment by tenant on adjoining land of his landlord--area or boundary to be determining factor. - .....are uncertain, then area must also be considered. in this case there is a clear finding that the eastern boundary is uncertain and that there has been an encroachment on the plaintiffs' khas land on the eastern side. it is also found that in settling the terms of this land the area of 3 cottas was given by guess,4. it is urged that as the eastern boundary is a tank its boundary is certain, but we do not think that, sitting in second appeal, we can accept that proposition against the findings of the courts of fast. though the position of the tank may be certain, there must always be some doubt whether the land on the edge of the tank is included in the tank as its bank or is no part of it. the finding is clear and we think the lower court is right in deciding on the principle that this.....
Judgment:

1. This appeal arises out of a suit in ejectment. The First Court gave the plaintiff a modified decree. On appeal it was held that the plaintiff cannot eject but can only get extra rent on the land on which the defendant is found to have encroached. Against this decision the defendant No. 1 has appealed.

2. The first point taken is that the plaintiff was not entitled to maintain the suit as he was not legally appointed a shebdit. It is found, however, that he is the de facto manager of the property and has been recognised as such by the parties concerned, and that is sufficient to enable him to bring a suit in ejectment to protest the idol's property against trespass.

3. The next point taken is that is deciding the suit the lower Appellate Court was Wrong in looking to the area of the land leased instead of the boundaries, and our attention is drawn to the decision of their Lordships of the Judicial Committee in the case of Durga Prasad Singh v. Rajendra Narayan Bagchi 21 Ind. Cas. 750 : 11 C. 493 : 18 C.W.N. 66 : (1914). M.W.N. l : 15 M.L.T. 68 : 19 C.L.J. 95 : 40 I.A. 223 : 26 M.L.J. 25 : 16 Bom. L.R. 42 (P.C.). That decision in no way contradicts the well-established rule that in a case of this sort where the boundaries can be ascertained, effect must be given to the description by boundaries irrespective of area; but if the boundaries are uncertain, then area must also be considered. In this case there is a clear finding that the eastern boundary is uncertain and that there has been an encroachment on the plaintiffs' khas land on the eastern side. It is also found that in settling the terms of this land the area of 3 cottas was given by guess,

4. It is urged that as the eastern boundary is a tank its boundary is certain, but we do not think that, sitting in second appeal, we can accept that proposition against the findings of the Courts of fast. Though the position of the tank may be certain, there must always be some doubt whether the land on the edge of the tank is included in the tank as its bank or is no part of it. The finding is clear and we think the lower Court is right in deciding on the principle that this is a case in which the boundaries being uncertain, the area must be the deciding feature.

5. We accordingly dismiss the appeal with costs.


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