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Bhogirath Chandra Mandal and ors. Vs. Sital Chandra Sarkar - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in17Ind.Cas.15
AppellantBhogirath Chandra Mandal and ors.
RespondentSital Chandra Sarkar
Excerpt:
landlord and tenant - occupancy-holding--transferability--custom, proof of--registration of transferee's name on payment of nazar--consent of landlord. - .....not make 'kharij-dakhil. we take order of the zemindar and take nazar from the purchaser and then make kharij-dakhil...without nazar never kharij-dakhil is made. in these villages, nazar is taken at the rate of rs. 2 per bigha. we do not forbid the purchase of jote at auction-sale. we make kharij-dakhil of the name of purchasers if nazar is paid. no objection is taken to it.' what this amounts to is that nazars are as a rule paid to the zemindar and on payment of the nazars the purchaser is usually recognised by the landlord. but the passage is not evidence of any custom or usage by which an unwilling landlord is bound, or evidence that the landlord is compelled, to recognise the purchaser on payment of nazar whether he wishes to do so or not. there is no other evidence in support of.....
Judgment:

1. This appeal arises out of an objection of the judgment-debtors, who are the appellants before us, under Section 47 of the Code of Civil Procedure that their raiyati holdings, which had been attached, were not saleable by local custom or usage without the consent of the landlord. Both the Courts below dismissed the objection of the judgment-debtors and they have now appealed to this Court.

2. The proof that these holdings are saleable without the landlord's consent, depends entirely upon a passage in the evidence which has been quoted in the judgment of the first Court. The view of that portion of the evidence taken by the first Court is accepted by the lower Appellate Court. The quotation of the evidence given in the first Court's judgment is this: 'There is a custom of the sale of raiyati jotes (meaning occupancy holdings) in the pergunnah. Without the permission of the zemindar, the jotes are being sold. If the purchaser pays rent, we take it and give receipt in the name of the old tenants. We do not give marfat of the purchase'. Without taking nazar, we do not make 'kharij-dakhil. We take order of the zemindar and take nazar from the purchaser and then make kharij-dakhil...without nazar never kharij-dakhil is made. In these villages, nazar is taken at the rate of Rs. 2 per bigha. We do not forbid the purchase of jote at auction-sale. We make kharij-dakhil of the name of purchasers if nazar is paid. No objection is taken to it.' What this amounts to is that nazars are as a rule paid to the zemindar and on payment of the nazars the purchaser is usually recognised by the landlord. But the passage is not evidence of any custom or usage by which an unwilling landlord is bound, or evidence that the landlord is compelled, to recognise the purchaser on payment of nazar whether he wishes to do so or not. There is no other evidence in support of the finding of the Court below, which must, therefore, be regarded as based on no evidence and unsustainable. We, therefore, set aside the judgments and decrees of the lower Courts and decree this appeal with half costs in this Court, the hearing-fee being assessed at half a gold mohur. The appellants before us are entitled to their costs in both the Courts below.


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