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Shaikh Karamat Ali and ors. Vs. Hand Man Das Marwari - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in34Ind.Cas.56
AppellantShaikh Karamat Ali and ors.
RespondentHand Man Das Marwari
Excerpt:
transfer of property act (iv of 1882), section 106 - lease--notice to quit, issue of, on behalf of some of joint owners--tacit assent of other co-owners--notice, whether sufficient. - .....out of a suit instituted by three brothers, namely, shaikh karamat ali, shaikh rahim bux and shaikh karim bux against the defendant for recovery of possession of a pucca house 'which is in the occupation of the defendant and also for recovery of compensation. under section 106 of the transfer of properly act, a notice is said to have been served on the defendant, a copy of which is on the record. it was served by a civil and criminal court mukhtear abdul rahim on behalf of the two brothers shaikh karamat ali and shaikh rahim bux. the first court gave a decree to the plaintiffs. the defendant appealed to the district judge, who set aside the decree of the first court and dismissed the suit on the ground that the provisions of section 106 of the transfer of property act had not been.....
Judgment:

1. This appeal arises out of a suit instituted by three brothers, namely, Shaikh Karamat Ali, Shaikh Rahim Bux and Shaikh Karim Bux against the defendant for recovery of possession of a pucca house 'which is in the occupation of the defendant and also for recovery of compensation. Under Section 106 of the Transfer of Properly Act, a notice is said to have been served on the defendant, a copy of which is on the record. It was served by a Civil and Criminal Court Mukhtear Abdul Rahim on behalf of the two brothers Shaikh Karamat Ali and Shaikh Rahim Bux. The first Court gave a decree to the plaintiffs. The defendant appealed to the District Judge, who set aside the decree of the first Court and dismissed the suit on the ground that the provisions of Section 106 of the Transfer of Property Act had not been strictly complied with, inasmuch as there are three plaintiffs in the suit while the notice is by only two of them. The finding of the lower Appellate Court being that the notice was insufficient, it dismissed the suit without entering into the merits of the case.

2. On behalf of the plaintiffs-appellants it was contended that the interest in the property in question was purchased by two of the brothers whose names appear in the notice and that the third brother Karim Bux may have some private arrangement with the other two brothers for a share in the property. The real lessor was one Shaikh Toomy, whose interest has now come into the hands of the two brothers named in the notice. The defendant was originally a lessee of the shop from the time of the former incumbent, namely, Shaikh Toomy, and his interest having by conveyance come to the two brothers, they now stand in the shoes of Toomy as lessors of the shop in question. Another point urged on behalf of the appellants is that although the notice mentioned the names of only two of the brothers, it should be treated as a notice not only on their behalf but also on behalf of the third brother Karim Bux. On reference to the statements made by Karim Bux himself in the deposition in the suit, it appears that it was really he who acted on behalf of his two brothers in engaging a Mukhtear, having a draft made, posting the notice and receiving an acknowledgment. All this was done by Karim Bux, the reason being, as we have been told, that he looks after the karbar and was, therefore, in charge of sending the notice to the defendant. He also says that he verbally told the defendant to vacate.

3. We are, therefore, of opinion that there are many facts on the record which go to show that the notice in question should be treated also as on behalf of Karim Bux. As the learned District Judge has not entered into the merits of the case, we remand it to him for the purpose of deciding it on the merits.

4. Costs will abide the result.


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