Skip to content


ishan Chandra Banerjee Vs. Hrishikesh Biswas and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in42Ind.Cas.550
Appellantishan Chandra Banerjee
RespondentHrishikesh Biswas and ors.
Excerpt:
possession, suit, for, by purchaser in execution of mortgage-decree - tenancy rights under, mortgagor, decision of--court, duty of--civil procedure code (act v of 908), order xli, rule 23--remand. - .....to come to a decision as to whether the defendants nos. 10 and 15 to 17 acquired any rights in the land in suit disentitling the plaintiff to khos possession of the land as against them. the lower appellate court has referred the plaintiff to fresh suits against these persons so that the rights should be decided in those suits and he has declined to decide that matter in the present suit, we think that the learned judge was wrong in his view and he ought to have decided this question in the present suit. the decree of the court below should, therefore, be set aside and the case sent back to decide this issue, namely, whether the defendants nos. 10 and 15 to 17 have acquired any rights in the land in suit disentitling the plaintiff to obtain khas possession of the land in suit. under the.....
Judgment:

Greaves, J.

1. The only question that really arises in this appeal is whether the lower Appellate Court was wrong in declining to come to a decision as to whether the defendants Nos. 10 and 15 to 17 acquired any rights in the land in suit disentitling the plaintiff to khos possession of the land as against them. The lower Appellate Court has referred the plaintiff to fresh suits against these persons so that the rights should be decided in those suits and he has declined to decide that matter in the present suit, We think that the learned Judge was wrong in his view and he ought to have decided this question in the present suit. The decree of the Court below should, therefore, be set aside and the case sent back to decide this issue, namely, whether the defendants Nos. 10 and 15 to 17 have acquired any rights in the land in suit disentitling the plaintiff to obtain khas possession of the land in suit. Under the provisions of Order XLI, rule 23, we accordingly send this case back to the lower Appellate Court with a direction to re-admit the suit in its original number in the register of civil suits and proceed to determine the issue above stated.

2. The plaintiff will be allowed mesne profits to be assessed by the Court who tries the issue after the decision of the issue mentioned above.

Walmsley, J.

3. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //