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Dwarkanath Das Sarkar Vs. Prasannakumar De - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1934Cal413
AppellantDwarkanath Das Sarkar
RespondentPrasannakumar De
Cases ReferredPeary Mohun Mukerji v. Ali Sheikh
Excerpt:
- .....of landlord and tenant between the parties. on behalf of the appellant, the decision in peary mohun mukerji v. ali sheikh (1898) 20 cal 249 was relied upon. but in a later decision of this court, in the case of kailash chandra v. meheruddi sheikh : air1927cal51 , it was held that, in an application under section 158, ben. ten. act, it is open to the court to determine whether the relationship of landlord and tenant does exist between the parties. mr. lahiri for the appellant would have me follow the decision in peary mohun mukerji v. ali sheikh (1898) 20 cal 249, contending that this decision is supported by some observations in the full bench decision in debendro kumar bundopadhya v. bhupendro narain dutt (1892) 19 cal 182 (fb). that case appears to me to be clearly.....
Judgment:

Mallick, J.

1. The only point that arises for consideration in this appeal is whether in a proceeding under Section 158, Ben. Ten. Act, started at the instance of the landlord, the Court has any jurisdiction to decide a dispute as to the existence of the relationship of landlord and tenant between the parties. On behalf of the appellant, the decision in Peary Mohun Mukerji v. Ali Sheikh (1898) 20 Cal 249 was relied upon. But in a later decision of this Court, in the case of Kailash Chandra v. Meheruddi Sheikh : AIR1927Cal51 , it was held that, in an application under Section 158, Ben. Ten. Act, it is open to the Court to determine whether the relationship of landlord and tenant does exist between the parties. Mr. Lahiri for the appellant would have me follow the decision in Peary Mohun Mukerji v. Ali Sheikh (1898) 20 Cal 249, contending that this decision is supported by some observations in the Full Bench decision in Debendro Kumar Bundopadhya v. Bhupendro Narain Dutt (1892) 19 Cal 182 (FB). That case appears to me to be clearly distinguishable. In that case the landlord's application under Section 158, Ben. Ten. Act was rejected, among others, on the ground that the petitioners' own assertion was that no tenancy, in fact, existed between themselves and the opposite party at the date of the petition and therefore as on the petitioners' own showing no tenancy existed, it would be absurd to ask the Court to determine the incidents of a tenancy. Peary Mohun Mukerji v. Ali Sheikh (1898) 20 Cal 249 gives some support, no doubt, to the contention raised on behalf of the appellant.

2. But the decision of the learned Judges in Peary Mohun Mukerji v. Ali Sheikh (1898) 20 Cal 249 would show that the question of relationship of landlord and tenant can sometimes be gone into-gone into collaterally-in a proceeding under Section 158, Ben. Ten. Act. In Kailash Chandra v. Meheruddi Sheikh : AIR1927Cal51 which was a decision much later than the decision in Peary Mohun Mukerji v. Ali Sheikh (1898) 20 Cal 249, Peary Mohun Mukerji v. Ali Sheikh (1898) 20 Cal 249 was referred to and the Hon'ble Judges in Kailash Chandra v. Meheruddi Sheikh : AIR1927Cal51 , in view of the wording of Section 158, sub-section 1(b), came to the conclusion that a Court, in a proceeding under Section 158, had jurisdiction to determine the question whether the relationship of landlord and tenant existed between the parties. Having regard therefore to the wording of Section 158, as it is to be found in sub-section (1), Clause (b), I am inclined to follow the decision of this Court in Kailash Chandra v. Meheruddi : AIR1927Cal51 in preference to the decision in Peary Mohun Mukerji v. Ali Sheikh (1898) 20 Cal 249 and I would accordingly dismiss the appeal with costs.


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