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Mohim Chandra Basak Chowdhury and ors. Vs. Rup Manjari Dasi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.213
AppellantMohim Chandra Basak Chowdhury and ors.
RespondentRup Manjari Dasi
Cases ReferredMohoram Sheikh Chaprasi v. Telamuddin Khan
Excerpt:
lease - transfer of property act (iv of 1882), section 106--notice--service by post--post-peon tendering notice--non-acceptance by lessee, effect of--descent of lease-hold property for one generation--possession at uniform rate--erection of masonry buildings--presumption of permanency--contention as regards admissibility of document--rejected by first court--no objection in appeal--objection cannot be raised in second appeal. - .....it appears from the finding of the munsif on this point, which has not been displaced by the district judge, that the post-peon went to the family dwelling house with the notices for all the defendants. several of the defendants were present and all those who were present saw the covers and refused to accept them. a notice, under section 106 of the transfer of property act, may be delivered to one of the family of the person intended to be bound by it or to his servants at his residence. the munsif found, as a. matter of fact, that the appellants were members of the same family and the district judge appears to have accepted this finding, for he says: i am satisfied that the post-man went to the family dwelling house of the defendants nos. 1 to 6 and tendered delivery of the.....
Judgment:

1. This was a suit for ejectment. It was decreed by the Courts below and defendants Nos. 1 to 6 appeal.

2. The first point taken on their behalf is purely technical, it is to the effect that the notice was not proved to have been properly served on all the defendants. It appears from the finding of the Munsif on this point, which has not been displaced by the District Judge, that the post-peon went to the family dwelling house with the notices for all the defendants. Several of the defendants were present and all those who were present saw the covers and refused to accept them. A notice, under Section 106 of the Transfer of Property Act, may be delivered to one of the family of the person intended to be bound by it or to his servants at his residence. The Munsif found, as a. matter of fact, that the appellants were members of the same family and the District Judge appears to have accepted this finding, for he says: I am satisfied that the post-man went to the family dwelling house of the defendants Nos. 1 to 6 and tendered delivery of the registered cover containing the notices in question.' It seems to us that on these findings of fact the requirements of Section 106 have been fulfilled. In any case, it is evident that there are no merits in the objection for, under the circumstances, all the defendants must have known perfectly well of the plaintiff's proceedings.

3. The second point taken on behalf of the appellants is that the District Judge has omitted to consider how their plea that they had a permanent interest in the land is affected by the evidence which has been given that the land has been inherited by them from their ancestors. But neither from the judgment of the Munsif nor from that of the District Judge does it appear that any specific instance of inheritance was pressed upon the attention of either of the Courts. All that has been suggested before us is that the persons now holding the land belong to the generation next below that of the original lessees. It appears to us impossible to hold that the descent of a lease-hold property for one generation should, as a matter of law, raise the presumption that the lessees have a permanent interest. If such a view were adopted, it appears to us that no landlord would be safe.

4. The next point taken is that the Courts below have improperly excluded certain evidence. The evidence in question consisted, firstly, of an unregistered pattah and, secondly, of certain receipts. As regards the unregistered pattah, it is argued that though it was rightly rejected as evidence of the transaction which it described, yet it might have been received as evidence explaining the subsequent possession of the defendants. It was, however, rejected by the Munsif and it does not appear that any objection to this order of the Munsif was raised before the District Judge. A question of this kind ought certainly to have been raised before the lower Appellate Court and we cannot allow it to be taken for the first time here.

5. As regards the receipts, they are really of no importance, for the fact that the appellants have been holding the land since 1273 as tenants, is not disputed.

6. Finally, it is argued that even on the findings of fact at which the learned Judge has arrived, he should have held that the interest of the lessees is permanent, and reliance has been placed on the decision in the case of Mohoram Sheikh Chaprasi v. Telamuddin Khan 15 C.L.J. 220 : 16 C.W.N. 567 : 13 Ind. Cas. 606. That case, however, is clearly distinguishable. In the first place, the period for which the land was held was half as long again, and in the second place the land in that case had been let for the residential purposes. There is nothing to show that the land in this case was let for residential purposes and it is said that the lessees do not, as a matter of fact, reside upon it. That case, therefore, is quite distinguishable from the present case and, in our opinion, is inapplicable. The learned Judge has found that the appellants have been in possession of the disputed land since 1273 at an uniform rate of rent, that the masonry buildings on the land were not erected by the defendants but by their sub-lessees and could not have cost more than a few hundreds of rupees. He finds also that they were all erected within the last few years. On these findings, we think that his finding that the appellants have no permanent right to the land in question cannot be said to be erroneous in law.

7. The appeal is, therefore, dismissed with costs.


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