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Naba Kishore Saha Vs. Dhananjoy Saha and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in33Ind.Cas.611
AppellantNaba Kishore Saha
RespondentDhananjoy Saha and anr.
Excerpt:
landlord and tenant - occupancy-holding, non-transferable--transfer in execution of money-decree--transferee and raiyat dividing holding--collusive surrender by raiyat--landlord, right of, to khas possession. - .....of his sons. subsequently, it appears, the defendant no. 6 entered into an arrangement with the landlords (the plaintiffs) under which the former executed a deed of surrender of the entire holding in favour of the landlords, although he was in possession of only a portion of the holding. but although he executed the istifanamah he retained possession of the portion of which ho was in possession, and the question is whether under these circumstances the plaintiffs are entitled to obtain khas possession of the holding.3. looking at the substance of the transaction between the defendant no. 1 and defendant no. 6, it appears that defendant no. 1 became transferee of a portion of the holding: and although the defendant no. 1 could not by his purchase (of the entire holding) acquire any.....
Judgment:

1. This appeal arises out of a suit for recovery of khas possession of a holding which originally belonged to the defendant No. 6, the pro forma defendant.

2. It appears that in execution of a decree for money the holding was sold and purchased by the defendant No. 1, who obtained symbolical possession. He, however, failed to obtain actual possession as the defendant No. 6, the old tenant, did not give up possession of the holding. Then the defendant No. 1 came to an arrangement with the defendant No. 6 by which the holding was practically divided between them. Defendant No. 1 obtained possession of a portion, the remaining portion being left in the possession of defendant No. 6, a conveyance having been executed by defendant No. 1 in favour of defendant No. 6 in the name of his sons. Subsequently, it appears, the defendant No. 6 entered into an arrangement with the landlords (the plaintiffs) under which the former executed a deed of surrender of the entire holding in favour of the landlords, although he was in possession of only a portion of the holding. But although he executed the istifanamah he retained possession of the portion of which ho was in possession, and the question is whether under these circumstances the plaintiffs are entitled to obtain khas possession of the holding.

3. Looking at the substance of the transaction between the defendant No. 1 and defendant No. 6, it appears that defendant No. 1 became transferee of a portion of the holding: and although the defendant No. 1 could not by his purchase (of the entire holding) acquire any right as against the landlords, the effect of the arrangement as between the defendant No. 1 and defendant No. 6 was that defendant No. 6 continued to remain in possession of a portion of the holding and allowed the defendant No. 1 to occupy the other portion. No case of abandonment was, or could under the circumstances be, set up by the plaintiffs and the surrender by defendant No. 6 in favour of the landlords is found to be collusive. The surrender not being real, the tenancy of defendant No. 6 has not yet terminated and the landlords (the plaintiffs), therefore, are not entitled to possession of the land. The surrender appears to have been made in pursuance of an arrangement with the landlords with the object of defeating the rights of defendant No. 1, the defendant No. 6 retaining possession of the portion of the holding which was in his possession.

4. Under these circumstances, I think, the plaintiffs are not entitled to recover khas possession. The result is that this appeal must be allowed and the suit dismissed with costs throughout.

Richardson, J.

5. I agree. The sale of the holding in execution of a money-decree obtained by a creditor not the landlord, was void as against the latter. That is the landlords' case and the fact is so. But it follows that the reconveyance of a portion of the holding by the purchaser, defendant No. 1, to the original tenant, the defendant No. 6, must also be void as against the landlords The two transactions must stand or fall together. If they both fall, the original tenancy is a subsisting tenancy and will continue to be a subsisting tenancy until it is terminated in a manner re-cognised by law. The landlords cannot re-enter till the tenancy is terminated.

6. It was not the landlords' case in the Courts below that the tenancy had been abandoned by the defendant No. 6, as is now suggested. If that question were open the facts do not appear to show , abandonment. After the purchase by the defendant No 1, the defendant No. 6 resisted his entry and then followed the compromise or arrangement under which the defendant No. 1 reconveyed a portion of the holding to the defendant No. 6 or his sons.

7. As regards the landlords that arrangement amounted in substance to the transfer of a portion of the holding by the defendant No. 6 to the defendant No. 1. It was an arrangement by which the defendant No. 1 with the consent of the defendant No. 6 came to occupy a portion of the holding while the defendant No. 6 continued to occupy the remainder.

8. The landlords or the plaintiffs, as I have said, did not make a case of abandonment. They put forward an alleged express surrender of the holding contained in a registered instrument. But after the surrender the defendant No. 6 is found to have continued in possession of a portion of the holding and both the Courts below seem to have been of opinion that the transaction was illusory. The surrender in other words was a pretended surrender of the whole holding, and not a true surrender. Such a surrender had not the effect in law of terminating the original tenancy of the defendant No. 6.

9. The appeal, therefore, should be allowed and the suit dismissed with costs throughout.


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