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Fani Bhusan Sarkar Vs. PulIn Chandra Mandal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in35Ind.Cas.838
AppellantFani Bhusan Sarkar
RespondentPulIn Chandra Mandal and ors.
Cases ReferredRudra Narain Maity v. Natabar Jana
Excerpt:
bengal tenancy act (viii of 1885 b. c.), schedule ill, article 3 - dispossession by person holding dual capacity of landlord find auction-purchaser of holding--limitation. - .....after dispossession of the plaintiffs. the question is whether that dispossession falls within the terms of article 3 of schedule iii of the bengal tenancy act. the defendant no. 3 in addition to being the landlord received from the defendant no. 2 a mortgage, which is said to be for the arrears of rent. default was made in payment of the mortgage-money and in a suit brought to enforce the mortgage security, the holding of the plaintiffs was brought to sale'-and purchased by the landlord. the landlord then obtained possession of the property through the court and subsequently settled the appellant on the land. that, it is said, is not a case falling within article 3 of schedule iii of the bengal tenancy act. the decisions in this court on the point are not uniform. it is no use saying.....
Judgment:

Fletcher, J.

1. The only question raised in this appeal is whether, on the facts found, the case comes within the special rule of limitation contained in Article 3 of Schedule III of the Bengal Tenancy Act. The present appellant, the defendant No. 1, claims as6ttle-rnent from the defendant No. 3, who is admittedly the landlord, after dispossession of the plaintiffs. The question is whether that dispossession falls within the terms of Article 3 of Schedule III of the Bengal Tenancy Act. The defendant No. 3 in addition to being the landlord received from the defendant No. 2 a mortgage, which is said to be for the arrears of rent. Default was made in payment of the mortgage-money and in a suit brought to enforce the mortgage security, the holding of the plaintiffs was brought to sale'-and purchased by the landlord. The landlord then obtained possession of the property through the Court and subsequently settled the appellant on the land. That, it is said, is not a case falling within Article 3 of Schedule III of the Bengal Tenancy Act. The decisions in this Court on the point are not uniform. It is no use saying that they are. In some of the decisions it is said that the dispossession referred to in Article 3 of Schedule III must be a dispossession by the landlord as such. In the case of Rudra Narain Maity v. Natabar Jana 21 Ind. Cas. 431 : 41 C. 52 at p. 56 : 18 C.W.N. 353 : 18 C.L.J. 89 in which, I may remark, the head-note is far in excess of what was actually decided by the Court, the learned Chief Justice, Sir Lawrence Jenkins, observed: 'We Recently had occasion to enter a protest against extending the terms of this Article by use of figures of speech and metaphors. What we have to see in each case is whether, in fact, there has been such dispossession as the Article requires. That dispossession, it is conceded, must be by the landlord.' That view I adopt in toto. The only question is whether the person who holds the dual capacity of the landlord and also of the purchaser of the holding, when he dispossesses the tenant, comes within the meaning of the Article. He remains the landlord, that is obvious. There are no words in the Article that say 'landlord as such'. It seems to me difficult on the face of the Article, to say how we can read such words into the words in the Article. There is a conflict of judicial authorities clearly. In the case of Aminuddin Munshi v. Ulfutunniwa Bibi 3 Ind. Cas. 315 : 13 C.W.N. 108 : 9 C.L.J. 131 the view was taken that ' the Article applied even when the landlord purchased the holding in execution. That decision was followed by myself and Mr. Justice Richardson in the case of Pitambar Mahapatra v. Bhagabal Lal 24 Ind. Cas. 860. The decision in Aminuddin Munshi v. Ulfutunnissa Bibi 3 Ind. Cas. 315 : 13 C.W.N. 108 : 9 C.L.J. 131 has, however, been, recently dissented from in the case of Kamal Dhari Thdkur v. Rameshwar Singh 19 Ind. Cas. 545 : 17 C.W.N. 817. In that conflict of judicial authorities, we have got to make up our minds which of these decisions we should follow. I think the decision in Aminuddin Munshi v. Ulfidunnissa Bibi 3 Ind. Cas. 315 : 13 C.W.N. 108 : 9 C.L.J. 131 is correct. It is in accordance with the terms of the section and the decision of Jenkins, C.J., in Rudra Narain Maity v. Natabar Jana 21 Ind. Cas. 431 : 41 C. 52 at p. 56 : 18 C.W.N. 353 : 18 C.L.J. 89. That being so we ought to reverse the decision of the learned Judge of the lower Appellate Court and decree the present appeal. The result, therefore, is that the plaintiffs' suit is dismissed with costs in all Courts.

Teunon, J.

2. I agree.


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