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Chandra Kumar Shaha Choudhury and ors. Vs. Moulvi Mafizar Rahman Choudhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in90Ind.Cas.832
AppellantChandra Kumar Shaha Choudhury and ors.
RespondentMoulvi Mafizar Rahman Choudhury and ors.
Excerpt:
construction of document - lease, duration of--covenant against assignment--receipt of rent from assignee--estoppel. - .....if the lessees transferred the lease to any one else. the plaintiff purchased the interest of the original lessor and defendants nos. 1 to 8 purchased at an execution sale the interest of the original lessees. defendants nos. 9 to 14 are the sub-lessees of defendants nos. 1 to 8. when the original lessees failed to pay rent the lessor undoubtedly could have recovered possession under the provisions of the kabuliyat. instead, however, of taking this obvious course in execution of the rent-decree which they obtained they brought the property to sale and what was sold was the right of the judgment-debtor. therefore, it seems to us that the effect of the execution sale coupled with the receipt of rent by the lessor thereafter was to create in defendants nos. 1 to 8 a tenancy in the terms of.....
Judgment:

Ewart Greaves, J.

1. This is an appeal under Section 15 of the Letters Patent.

2. The question that arises for our decision arises on a kabuliyat dated the 15th Pous 1247. Thereby the owner of the raiyati demised certain premises which are situated in the Town of Chittagong to the persons named in the kabuliyat in a dar-raiyati. The document provided for the lessees building a house for the purpose of a shop on the land and carrying on business and paying the rent therein named every year to the lessor. There was a further provision in the document that if the rent was not paid in any year the lessor would be entitled to recover khas possession of the land with arrears of rent and damages by suit. The document further provided that if the lessees did not carry on business on the land then they would give up the land to the lessor and that the lessees would not be entitled to give the land to any body else. The contentions before the Courts below and before Mr. Justice Newbould were on behalf of the plaintiff that this was a tenancy-at-will which could be determined by proper notice whereas the defendants contended that upon the true construction of the document it was a permanent lease. Mr. Justice Newbould held that the lease was not a permanent one and that it had been determined by six months' notice which had been given. It seems to us that upon the true construction of the document the lease was one for the lives of the lessees subject to its determination if they failed to pay rent in any year or if they failed to carry on business on the land. There was a further right of re-entry if the lessees transferred the lease to any one else. The plaintiff purchased the interest of the original lessor and defendants Nos. 1 to 8 purchased at an execution sale the interest of the original lessees. Defendants Nos. 9 to 14 are the sub-lessees of defendants Nos. 1 to 8. When the original lessees failed to pay rent the lessor undoubtedly could have recovered possession under the provisions of the kabuliyat. Instead, however, of taking this obvious course in execution of the rent-decree which they obtained they brought the property to sale and what was sold was the right of the judgment-debtor. Therefore, it seems to us that the effect of the execution sale coupled with the receipt of rent by the lessor thereafter was to create in defendants Nos. 1 to 8 a tenancy in the terms of the original demise, that is to say, during the lives of the original lessees determinable on the grounds which I have indicated. In the year 1909 according to the defendants or in the year 1914 according to the plaintiff a permanent structure was erected by the defendant No. 9 upon the land. According to the finding both of the Munsif and of the lower Appellate Court this erection was made with the knowledge of the plaintiff and subsequent to this rent was received by the plaintiff from defendants Nos. 1 to 8. It seems to us, therefore, that the plaintiff must have known of the sub-lease which was executed so long ago as 1891 and subsequent thereto and to the erection of a pucca building on the land he received rent with the knowledge of the sub-lease and erection of the pucca building on the land. Accordingly, it seems to us that the plaintiff cannot now eject the defendants on the ground that they have parted with their possession of the property to somebody else and we think that the plaintiff's suit must fail for the reasons which we have indicated. If the original lessees are dead it may be that in a subsequent proceeding the plaintiff will be entitled to recover possession of the land; but that question has not been raised in the suit and cannot be gone into in this proceeding.

3. The result is that the judgment appealed from was in our view not correct and the plaintiff's suit must fail.

4. The appeal, accordingly, succeeds with costs.

5. With regard to Appeal No. 44 of 1923 for the reasons which I have indicated this must fail and must be dismissed with costs.

Cuming, J.

6. I agree.


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