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Lubra Das Vs. Madhab Parhi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.75
AppellantLubra Das
RespondentMadhab Parhi
Excerpt:
central provinces tenancy act (ix of 1883), sections 3(3) 43(2) - landlord--lessee--consent of lessee to mortgage by tenant, whether binding upon the original landlord--second appeal--question of law arising upon facts found. - .....the lower appellate court that the mortgage, under which the defendant claims, was consented to by padma nabh who was the lessee of the village at the time of the consent. it is provided by section 43, clause 2, of the act ix of 1883, that any alienation by way of mortgage by an occupancy tenant without the consent of his landlord shall be void against his landlord : a landlord has been defined in section 3 clause 3 as meaning the person of whom a tenant holds land, to whom the tenant is or but for a special contract would be liable to pay rent for that land. padma nabh did certainly fill this character at the time and the mortgage was binding upon padma nabh but padma nabh has been evicted on the expiry of his lease and the plaintiff who is the present lessee wants to evict the.....
Judgment:

Chatterjee, J.

1. There can be no doubt upon the findings arrived at by the lower appellate Court that the mortgage, under which the defendant claims, was consented to by Padma Nabh who was the lessee of the village at the time of the consent. It is provided by Section 43, Clause 2, of the Act IX of 1883, that any alienation by way of mortgage by an occupancy tenant without the consent of his landlord shall be void against his landlord : a landlord has been defined in Section 3 Clause 3 as meaning the person of whom a tenant holds land, to whom the tenant is or but for a special contract would be liable to pay rent for that land. Padma Nabh did certainly fill this character at the time and the mortgage was binding upon Padma Nabh but Padma Nabh has been evicted on the expiry of his lease and the plaintiff who is the present lessee wants to evict the defendant. On general principles, the consent of Padma Nabh who was a temporary lessee only should not bind any person who does not claim through him and if that be so the plaintiff would be entitled to a decree. It is contended, however, that neither the parties nor their advisers, nor the Courts below who are familiar with the operation of Act IX of 1883, raised this plea and it cannot be raised in second appeal. It may be that the parties or their advisers made a mistake. But if the right view of the law can be argued upon the facts found, I do not see why this Court should be debarred from deciding the question of law. I think the consent could be binding so long as the interest of the consentor lasted, this includes the interest of those claiming under or through him. Otherwise the object of the legislature in placing such restriction would be frustrated if a temporary lessee could on receipt of consideration consent to alienations and mortgages. The next lessee or the original landlord might find himself face to face with very undesirable parties whom he does not like as tenants. His possession: might be made extremely irksome. In this view of the law I hold that the plaintiff is not bound by the consent of Padma Nabh. The decrees of lower Courts are set aside and the suit decreed with costs in all Courts.


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