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Sheik Isab Vs. Guru Charan Shaha - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in122Ind.Cas.223
AppellantSheik Isab
RespondentGuru Charan Shaha
Excerpt:
bengal tenancy act (viii of 1885), section 60 - absence, of registration of landlord's name--objection must be taken in written statement--non-payment of rent, effect of. - 1. this appeal arises out of a suit for arrears of rent. the suit has been decreed by both the courts below. the defendant has then preferred this second appeal.2. in support of the appeal two contentions have been urged. the first one is to the effect that the question as to whether the relationship of landlord and tenant exists between the plaintiff and the defendant has not been properly determined by the learned subordinate judge on appeal. it is said that although he has found that there was a kabuliyat under which the rent in the present suit was claimed it has not been found whether the kabuliyat was actually acted upon or not. now this argument, as far as i can understand it, really means that it was the defendant's case that the kabuliyat although executed was not intended to be.....
Judgment:

1. This appeal arises out of a suit for arrears of rent. The suit has been decreed by both the Courts below. The defendant has then preferred this second appeal.

2. In support of the appeal two contentions have been urged. The first one is to the effect that the question as to whether the relationship of landlord and tenant exists between the plaintiff and the defendant has not been properly determined by the learned Subordinate Judge on appeal. It is said that although he has found that there was a kabuliyat under which the rent in the present suit was claimed it has not been found whether the kabuliyat was actually acted upon or not. Now this argument, as far as I can understand it, really means that it was the defendant's case that the kabuliyat although executed was not intended to be acted upon; because the mere fact that the defendant has not paid any rent after the execution of the kabuliyat does not go to show that the kabuliyat has not been, acted upon or indeed would absolve the defendant from his liability to pay rent under the kabuliyat. So far as this matter is concerned all that the defendant has been able to prove is that the rent has not been realised under the kabuliyat since its execution. On the other hand, the learned Subordinate Judge refers to certain facts as indicating plainly that the kabuliyat was intended to be acted upon; for instance, he has said that there was a mortgage decree of the value of Rs. 1,500 in plaintiffs favour as against the predecessors of the defend-ant, that this decree was afterwards settled at the amount of Rs. 1,000 and that the mortgagors not being able to pay up the decretal amount sold the land to the plaintiff, and after the sale they executed certain kabuliyats out of which is the one in the present suit. The learned Subordinate Judge has found that the kobala and the kabutiyat were all registered on one and the same date, that is to say, the 10th March, 1917, and that after the execution, of these documents the execution proceedings were dismissed for non-prosecution and the mortgage-decree was never executed by the plaintiff again. All these go to show that the transactions which were represented by the execution of the kabuliyat as well as the execution of the kobala were bona fide transactions really intended, to be acted upon. Under these circumstances we are unable to uphold the first contention that has been urged on behalf of the appellant.

3. It has been urged in the next place that Section 60 of the Rent Act operates as a bar to the passing of the decree in the present suit. Now, this objection does not appear to have been taken in the written statement and although a question or two may have been put to the plaintiff or his witnesses as to whether his name was registered or not, we are not prepared to hold that the Courts below were bound to take cognizance of this objection, the more so because if it had been taken in the written statement it would have been open to the plaintiff to get his name registered before the decree was passed even if he had not. done so before the suit. This contention, also should be overruled.

4. The appeal, in our opinion, fails and must be dismissed with costs.


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