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Sarat Chandra Vs. Monorama Debi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal181,68Ind.Cas.295
AppellantSarat Chandra
RespondentMonorama Debi and ors.
Excerpt:
landlord and tenant - occupancy holding, nontransferable--sale only of share, if entitles landlord to khas possession--abandonment--payment or offer of payment of rent by tenant, effect of. - 1. in this case there is both an appeal and a cross objection. the first court dismissed the suit and the subordinate judge decreed the suit in part, that is, as against the defendant who was described as principal defendant no. 1 and dismissed the suit as against the rest. against this dismissal against the rest of the (sic)fendants the cross objection is directed. the question to be decided in this appeal is whether there was or was not, a sale of the entire holding. if there was a sale of the entire holding then there is no question as to the landlord's right to khas possession. that is the decision which has been adopted by the subordinate judge.2. it has been contended before us that we are bound by his finding on of this question as being one of fast. we do not think in the.....
Judgment:

1. In this case there is both an appeal and a cross objection. The First Court dismissed the suit and the Subordinate Judge decreed the suit in part, that is, as against the defendant who was described as principal defendant No. 1 and dismissed the suit as against the rest. Against this dismissal against the rest of the (sic)fendants the cross objection is directed. The question to be decided in this appeal is whether there was or was not, a sale of the entire holding. If there was a sale of the entire holding then there is no question as to the landlord's right to khas possession. That is the decision which has been adopted by the Subordinate Judge.

2. It has been contended before us that we are bound by his finding on of this question as being one of fast. We do not think in the circumstances of this case that it tan be considered as a finding only of fast. The document which conveyed the property conveyed only 15 annas of it. In my opinion the Subordinate Judge was in error in holding that there had been a sale of the whole holding. There was in fact, as the document shows, a sale only of a share of the holding. That being so, there being a sale of a share of the holding the landlord was not entitled to khas possession unless it was shown that there had been an abandonment. As regards this the learned Sub-ordinate Judge's finding is hardly consistent with same other part of his judgment. He found that there bad been no abandonment of the holding. Nor tan it be said that there has been an abandonment of the holding in the face of the fast that there has been all along payment or offer of payment of rent by the tenant. This disposes of the appeal.

3. As regards the cross objection, it depends upon the decision we come to in the appeal and having regard to our decision in the appeal it must necessarily fail.

4. We, therefore, decree the appeal and dismiss the cross objection. The appeal will be decreed with costs. As no extra time was taken by the discussion of the cross-objection there will be no order as to costs is in the cross-objection.


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