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Shib Charan Chakraburtty and ors. Vs. BepIn Behary Chakraburtty and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in77Ind.Cas.1047
AppellantShib Charan Chakraburtty and ors.
RespondentBepIn Behary Chakraburtty and ors.
Excerpt:
bengal tenancy act (viii of 1885), section 155 notice under - tenant not required to remedy misuse--notice, validity of. - .....us for decision is this: whether the decision of the high court when it made a remand in this matter is conclusive. i am of opinion that it is not conclusive in the sense in which it has been urged before us by the appellant to-day. the question then is; that being so and there being no bar to the decision by the subordinate judge; whether his decision do that particular point with regard to, the notice is correct. he finds on the evidence as a question of fact that 'the misuse is capable of remedy and that when the notice was issued the plaintiff knew it well that the misuse complained of was capable of remedy.' then, after referring to the notice, he says that 'the notice shows that the plaintiff did not ask the defendants to remedy the misuse though at was capable of remedy.'.....
Judgment:

John Woodroffe, J.

1. This appeal has taken some time but the point is very simple. It arises out of a suit brought by the plaintiff against the defendants for recovery of khas possess on of certain plot of land by ejecting the defendants there from and for recovery of a certain sum of money claimed by way of compensation for misuse of the land. The defence is that no notice was served and that if it was served it was invalid. The point which comes before us for decision is this: whether the decision of the High Court when it made a remand in this matter is conclusive. I am of opinion that it is not conclusive in the sense in which it has been urged before us by the appellant to-day. The question then is; that being so and there being no bar to the decision by the Subordinate judge; whether his decision do that particular point with regard to, the notice is correct. He finds on the evidence as a question of fact that 'the misuse is capable of remedy and that when the notice was issued the plaintiff knew it well that the misuse complained of was capable of remedy.' Then, after referring to the notice, he says that 'the notice shows that the plaintiff did not ask the defendants to remedy the misuse though at was capable of remedy.' Accordingly he holds that the notice was not good in law. As regards the claim for compensation there is no ground of appeal nor is it sustainable, the notice having been held to be bad.

2. In my opinion, the appeal fails and must be dismissed with costs and in addition one gold mohur for further hearing on the 29th March 1922.

Ghose, J.

3. I agree.


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