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Felu Sarkar and ors. Vs. Rani Hemanta Kumari Debya - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in47Ind.Cas.365
AppellantFelu Sarkar and ors.
RespondentRani Hemanta Kumari Debya
Excerpt:
transfer of property act (iv of 1882), section 52 - lis pendens, doctrine of, applicability of--landlord and tenant--lease by ijaradar, after expiry of ijara and during pendency of ejectment suit, validity of. - .....remaining interest, pro forma defendants. her case was that she granted an ijara of her share to messrs. watson & co., predecessors of the midnapore zamindary company, and that at the expiry of the tiara she brought a suit against them in 190s, and obtained a decree, and that the tenant defendants obtained settlement of the lands during the pendency of that suit. the suits were dismissed by the first court, but they were decreed on appeal.2. the defence was that the defendants obtained settlement from messrs. watson & co. in 1305 while the latter were in possession under their ijara lease.3. the contentions pressed by the appellants-defendants are based mainly on the assertion that they obtained settlement in 1305, and i think it will be convenient - to state them before turning to the.....
Judgment:

1. These appeals are preferred by the principal (defendants, the tenants. The plaintiff brought the suit from which they arise to recover khas possession of her share, approximately four annas, in certain land, by ejecting the principal defendants, and she made the Midnapore Zemindary Company, owners of the remaining interest, pro forma defendants. Her case was that she granted an ijara of her share to Messrs. Watson & Co., predecessors of the Midnapore Zamindary Company, and that at the expiry of the tiara she brought a suit against them in 190S, and obtained a decree, and that the tenant defendants obtained settlement of the lands during the pendency of that suit. The suits were dismissed by the first Court, but they were decreed on appeal.

2. The defence was that the defendants obtained settlement from Messrs. Watson & Co. in 1305 while the latter were in possession under their ijara lease.

3. The contentions pressed by the appellants-defendants are based mainly on the assertion that they obtained settlement in 1305, and I think it will be convenient - to state them before turning to the findings recorded by the learned Subordinate Judge.

4. They are as follows:

(1) The settlements were taken from Messrs, Watson & Go.' who were owners to the extent of about 12 annas and ijaradars of the balance, and, therefore, it cannot be said that the defendants came upon the land other than in good faith.

(2) Even if it be held that the ljara lease came to an end before 1305, the suits are barred by limitation.

(3) If Messrs. Watson & Co. were not ijaradars in 1305, they were at any rate proprietors to the extent of about 12 annas; the defendants obtained settlement from them and after being in possession for twelve years, they acquired rights of occupancy which cannot be assailed.

(4) The tenants were not made parties to the suit of 1908, although the plaintiff could not get khas possession without obtaining a decree against them and, therefore, the present suit is barred by Order II, Rule 2.

(5) As to the finding that the lands are proprietor's nij jote, this claim was not made in the plaint, it was not advanced in the first Court, and no evidence was adduced in regard to it.

5. The propositions embodied in the first four arguments are elementary, and it is conceded on the one hand that if the defendants obtained settlement in 1305, the arguments are unanswerable, and on the other that they have no foundation if the defendants did not obtain settlement until several years later.

6. The learned Subordinate Judge begins his judgment by an unfortunate misstatement: he says that the ijara expired before 1305, whereas it is admitted that there is no evidence to slow when it expired The mistake, however, does not vitiate his judgment, he goes on to record clear findings which are not affected by his belief that the ijara had undoubtedly come to an end before 1305. He points out that there are no kabuliyats in respect of the settlements said to have been made in 1305 and 1310: that the kabuliyats of 1317 were executed while the title suit was pending: and that the explanation offered for the absence of Dakhilas during the period 1305 to 1310 is not satisfactory; he then holds that the settlements cannot be placed earlier than 1317 and points out that at least some of the defendants knew of the litigation that was is progress, and that at any rate the pro forma defendants who granted settlement cannot have been acting bona fide.

7. These findings of fact dispose of four of the arguments advanced by the appellants, and it is unnecessary to say anything about the question whether the land is the proprietor's nij jote or not.

8. The appeals are dismissed with costs.


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