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Dwarka Nath Dey Chowdhury Vs. Sailaja Kanta Mullik - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in45Ind.Cas.702
AppellantDwarka Nath Dey Chowdhury
RespondentSailaja Kanta Mullik
Excerpt:
landlord and tenant - suit for arrears of rent--decree with limitation that it should not be executed against tenant personally, validity of. - .....decree to the plaintiff as regards one jama only. we are not concerned with that jama, because the learned judge of the lower appellate court concurred with the judge of the primary court as regards that and there is no appeal with reference to it. it is only with regard to the other two jamas which are called mudafat kamal chand mullik and biswa nath mullik that our decision is invited, and with respect to them the learned judge of the court of appeal below stated that the evidence was meagre, that there was no evidence on the plaintiff's side that the defendant was in possession of them and that he was not favourably impressed with the witnesses. the learned judge also remarked that he was not prepared to discard the evidence on the plaintiff's side as concocted or forged but that he.....
Judgment:

1. This is an appeal by the plaintiff against the decision of the learned Subordinate Judge of Nadia modifying the decision of the Munsif of Ranaghat. The plaintiff brought the suit to recover rent in respect of three jamas. The defences raised were three. First of all, that the plaintiff had not got the title, secondly, that the suit could not proceed owing to the boundaries of the jotes not being given and thirdly, that there was no relationship of landlord and tenant. The first Court decided the suit wholly in favour of the plaintiff. On appeal, the lower. Appellate Court has reversed that decision and has given a decree to the plaintiff as regards one jama only. We are not concerned with that jama, because the learned Judge of the lower Appellate Court concurred with the Judge of the Primary Court as regards that and there is no appeal with reference to it. It is only with regard to the other two jamas which are called Mudafat Kamal Chand Mullik and Biswa Nath Mullik that our decision is invited, and with respect to them the learned Judge of the Court of Appeal below stated that the evidence was meagre, that there was no evidence on the plaintiff's side that the defendant was in possession of them and that he was not favourably impressed with the witnesses. The learned Judge also remarked that he was not prepared to discard the evidence on the plaintiff's side as concocted or forged but that he must say that it was not sufficient to make the defendant personally liable for the rent of those two jamas. As argued by both sides, that, however, cannot stand. Either the defendant is liable or is not. There is no half way between these two and the case must go back to the learned Judge of the lower Appellate Court to re-hear the appeal with regard to these two jamas Mudafat Kamal Chand Mullik and Biswa Kath Mullik and to come to a clear finding as to whether the defendant is or is not liable for rent in respect of them. If he finds that the defendant is liable, he must pass a decree in favour of the plaintiff in the ordinary way without the limitation that has been attempted to be imposed in the judgment appealed against. If the evidence does not establish the defendant's liability, he must decide it that way. Costs will abide the result of the re-hearing by the lower Appellate Court.


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