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Baikuntha Nath De and ors. Vs. Shaik Hari and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal592,92Ind.Cas.899
AppellantBaikuntha Nath De and ors.
RespondentShaik Hari and anr.
Excerpt:
ejectment suit - non-joinder of party, effect of--appeal, second--permanent tenancy, finding as to--high court, interference by. - chakravarti, j.1. this is an appeal by defendants nos. 1 and 2 and arises out of a suit for ejectment by the plaintiff. the defence of the defendants was that the tenancy was a permanent one and was not, therefore, determinable by the plaintiff-landlord.2. the court of first instance dismissed the suit. the lower appellate court, reversed that judgment and decreed the plaintiff's suit with costs and made a decree for ejectment giving the defendants six months' time to vacate the land.3. in this second appeal by the defendants the learned advocate for the defendants contended first that the suit was bad, because one of the sub-lessees was not a party to the suit. we do not think that mere non-joinder of a party in an ejectment suit is fatal to the trial of the case. it may be that the.....
Judgment:

Chakravarti, J.

1. This is an appeal by defendants Nos. 1 and 2 and arises out of a suit for ejectment by the plaintiff. The defence of the defendants was that the tenancy was a permanent one and was not, therefore, determinable by the plaintiff-landlord.

2. The Court of first instance dismissed the suit. The lower Appellate Court, reversed that judgment and decreed the plaintiff's suit with costs and made a decree for ejectment giving the defendants six months' time to vacate the land.

3. In this second appeal by the defendants the learned Advocate for the defendants Contended first that the suit was bad, because one of the sub-lessees was not a party to the suit. We do not think that mere non-joinder of a party in an ejectment suit is fatal to the trial of the case. It may be that the party not being impleaded may not be bound by the decree. But so far as the defendants are con-earned it has been found that they have no right to retain possession of the land.

4. The second ground which was suggested was that upon the facts found by the lower Appellate Court we ought to presume that the tenancy held by the defendants was a permanent one. The only facts found are that the tenancy was created more than 74 years ago and the rent has not been changed during all these years. The lower Appellate Court, however, points out that there has been no case of succession in this case, because the different tenants who held the land were not shown to have claimed through each other. Therefore in this case the only facts found are that the tenancy is an old one and the rent has not been varied and that the land was let out for the purpose not of building any permanent structure but of raising huts. I do not think that there was an error of law in the judgment of the lower Appellate Court when that Court refused to draw an inference of permanency on the facts found.

5. The appeal, therefore, fails and is dismissed with costs.

Cuming, J.

6. I agree.


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