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Sadhan Sardar and anr. Vs. Lakan Mandal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.255
AppellantSadhan Sardar and anr.
RespondentLakan Mandal and ors.
Cases Referred and Arabali v. Rochimuddi
Excerpt:
party - necessary party--person not made party to proceeding, not bound by orders-purchase of occupancy holding in execution--permanent lease granted to plaintiff by purchaser--reversal of sale without making plaintiff party--whether plaintiff bound by order of reversal--bengal tenancy act (viii of 1885), section 85 clause (2)--lease in contravention of clause (2) section 85--who is entitled to question validity of lease. - .....v. rochimuddi 10 ind. cas. 562 : 13 c.l.j. 656, an under-raiyat who holds under a permanent lease granted by a raiyat can successful a suit for possession or defend dispossession against the raiyat or his representatives-in-interest. the true object of section 85 of the bengal tenancy act is to entitle the landlord of the raiyat to question the validity of a sub-lease granted in contravention thereof.3. the conclusion follows that the plaintiffs have established their title as against the defendants whose title must be taken to have been extinguished by the sale, in so far, at any rate, as the present plaintiffs are concerned. the decree made by the subordinate judge must, therefore, be affirmed and this appeal dismissed with costs.4. it is conceded that this judgment will govern.....
Judgment:

1. This is an appeal on be-half of the defendants in an action in ejectment. The subject-matter of the litigation is an occupancy-holding which was sold in execution of a money-decree on the 15th May 1893. The sale was duly confirmed and the purchaser obtained possession. He subsequently granted a permanent lease to the plaintiffs-respondents on the 15th April 1896. The case for the plaintiffs is that they also obtained possession but were later on evicted by the appellants. The defendants resist the claim on the ground that the sale, which is the foundation of the title of the plaintiffs, was reversed on the 25th August 1906 and that consequently the plaintiffs have no enforceable title as against them. This defence has been overruled by the Court below and, in our opinion, rightly. It is clear that as the purchaser alone was made a party to the proceedings for reversal of the sale after he had granted a permanent lease in favour of the respondents, they are not bound by the order which was made behind their back. It cannot be disputed, in view of the decision of this Court in the case of Durga Charan Mandal v. Kali Prasanna Sarkar 26 C. 727 : 3 C.W.N. 586, that appropriate proceedings have to be taken for reversal of a sale of an occupancy-holding when the sale is impeached on the ground that the holding is not transferable by custom and is not liable to be sold in execution of a money-decree. In the case before us, as we have just explained, this proceeding was in-fructuous in so far as the respondents are concerned, because they were not brought before the Court and were not afforded any opportunity to contest the application of the judgment-debtors. Consequently, in so far as they are concerned, they are clearly entitled to maintain the position that there was a valid sale. See Menajudi v. Toam Mandal 15 Ind. Cas. 176.

2. It has been finally argued on behalf of the appellants that even though the sale be treated as a valid sale, the plaintiffs have acquired no valid title because the sub-lease in their favour was granted in contravention of the provisions of Clause (2) of Section 85 of the Bengal Tenancy Act. In our opinion, there is no substance in this contention, because, it is not open to the present appellants to question the validity of the sublease on the grounds alleged. As explained in the cases of Manik Borai v. Bani Charan Mandul 10 Ind. Cas. 469 : 13 C.L.J. 649 and Arabali v. Rochimuddi 10 Ind. Cas. 562 : 13 C.L.J. 656, an under-raiyat who holds under a permanent lease granted by a raiyat can successful a suit for possession or defend dispossession against the raiyat or his representatives-in-interest. The true object of Section 85 of the Bengal Tenancy Act is to entitle the landlord of the raiyat to question the validity of a sub-lease granted in contravention thereof.

3. The conclusion follows that the plaintiffs have established their title as against the defendants whose title must be taken to have been extinguished by the sale, in so far, at any rate, as the present plaintiffs are concerned. The decree made by the Subordinate Judge must, therefore, be affirmed and this appeal dismissed with costs.

4. It is conceded that this judgment will govern the other appeal (No. 1486 of 1910) which is, therefore, also dismissed with costs.


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