Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Benode Behari Mandal vs Jitendra Prosad Chatterji And … on 16 July, 1928
Equivalent citations: AIR 1928 Cal 748 a, 117 Ind Cas 847


1. This is an appeal by the plaintiff in a suit for recovery of possession of certain lands on declaration of his title. The lands in suit formed parts of two different occupancy holdings, one bearing a rental of Rs. 37-80 and the other bearing a rental of Rs. 9-4-0 Those two tenancies were brought to sale in execution of a money decree and they were purchased by the plaintiff, and the plaintiff took delivery of possession on 12th December 1921. He was subsequently dispossessed of some of the lands by defendant 1 in collusion with other defendants, including the landlords; and the plaintiff brought the suit in order to recover possession of the lands of which he had been dispossessed. The first Court decreed the suit so far it related to lands of the tenancy of Rs. 9-4-0 and dismissed it in respect of the lands of the other tenancy. Both parties appealed and the learned Subordinate Judge dismissed the suit entirely. As will appear from the judgment of the learned Subordinate Judge, the plaintiff took care not to take possession through Court of the whole of the lands of the two tenancies, and the plaintiff is now in possession of some of the lands of these tenancies, and he claims to recover possession of only those other lands which were delivered to him, and of which he was subsequently dispossessed. The defendants set up a story that the tenant whose tenancies were sold in execution of the money decree had surrendered the holding to the landlords prior to the date of the execution sale, and that the landlords had held the lands khas for some time and had subsequently settled them with defendants 1 and 6. Therefore, even according to the case for the defence, defendant 6, the original tenant, is still in possession of some of the lands of the two tenancies.

2. As regards the story of the surrender, the learned Courts below have found that the story is false, and that it has bean concocted with a view to cheat the plaintiff. The learned Subordinate Judge has however dismissed the plaintiff’s suit, holding that because the plaintiff had purchased the entire holding at the execution sale, his purchase was of no effect as against the landlords; and the Subordinate Judge considered this argument sufficient for dismissing the plaintiff’s suit. In this he was in error. So far as the tenant defendant 6 was concerned it was not open to him to question the sale. The landlords could only question the sale if it had been followed by complete abandonment of the lands by the tenant. As the findings of the Courts below are that the tenant is still in possession of some of the lands, it follows that there has been no abandonment which entitles the landlords to re-enter. The fact that the plaintiff did not take possession of all the lands is a material circumstance which the learned Subordinate Judge has failed to appreciate. It is this circumstance which puts the landlords out of the Court in the matter of re-entry. The plaintiff is in the position of a purchaser of a portion of a non-transferable occupancy holding as against whom no landlord has a right of re-entry.

3. The appeal therefore succeeds and the suit is decreed in its entirety with costs in all Courts.

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