Hem Lotta vs Sreedhone Borooa And Anr. on 27 November, 1877

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Calcutta High Court
Hem Lotta vs Sreedhone Borooa And Anr. on 27 November, 1877
Equivalent citations: (1878) ILR 3 Cal 772
Author: R Garth
Bench: R Garth, Birch


Richard Garth, C.J.

1. We think that the District Judge has made a mistake in this case, which the learned Judge in this Court has not thought fit to rectify.

2. The District Judge appears to have considered, for some reason or other, that it was not competent for the Civil Court to question the validity of the proceedings of the Collector.

3. The question arose in this way-

The plaintiff claimed rent from the defendant by virtue of a patni which had been granted to her by Doorga Mohun, and under which Doorga Mohun’s rights as the defendant’s landlord had been conveyed to him (the plaintiff).

4. The defendant’s case was, that the patni was invalid, because Doorga Mohun had no right to grant it.

5. Now, prima facie, Doorga Mohun had of course a right by law to grant the patni. But the defendants alleged, that certain proceedings had been taken by the Collector, the legal effect of which was to prevent Doorga Mohun from transferring his interest in the tenure; which proceedings consisted of a certificate, which was intended to operate as a judgment against Doorga Mohun, and a notice given to him of the issue of that certificate.

6. Now it was absolutely necessary in order to answer the plaintiff’s case effectually, that the defendants should prove these proceedings in a regular way; and it is clear, that the plaintiff was at liberty, if she could, to question the legality of those proceedings, and to show that they were irregular and ineffectual.

7. But the Judge says: “This Court cannot say that the procedure followed by the Collector was irregular, and that the entire proceedings are null and “void;” and further on be says, “I hold that this Court cannot in this suit examine the proceedings of the Collector under Act VII, and must, as nothing appears to the contrary, assume that they were regular.

8. In this we think that the Judge was clearly wrong. He was bound to examine the proceedings of the Collector; he was bound to see that they were legal and regular, so as to constitute a legal bar to Doorga Mohun’s transferring his interest to the plaintiff; and the Judge was not at liberty to make any presumption in favour of their legality or correctness.

9. The case must go back to the Judge to try the question of the legality of the Collector’s proceedings. The Munsif tried this question, and it will be for the Judge now to ascertain whether the proceedings were regular and effectual so as to prevent the transfer of the tenure by Doorga Mohun to the plaintiff.

10. If necessary, additional evidence may be given by either party for the purpose of determining that question.

11. The judgment of this Court and of the District Judge will be reversed, and the case will be remanded to the District Judge for retrial in accordance with the views expressed.

12. If further evidence is necessary, the Judge can give the parties an opportunity of adducing it. The costs will abide the result.

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