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Calcutta High Court
Kadir Bux And Ors. vs Maharaja Birendra Kisore Manikya … on 3 April, 1913
Equivalent citations: 30 Ind Cas 914
Bench: L Jenkins, A Mookerjee, Beachcroft


JUDGMENT

1. In these two appeals, the right of the Maharaja has been affirmed by the lower Appellate Court, and it has been held that he is entitled to have the lands in suit assessed with the rental of Rs. 2 per kani and also to get mesne profits. From the decrees of the lower Appellate Court, the defendants have come to this Court by way of second appeal. Here, as in other cases, much of the difficulty experienced has been created by the disregard of the essential allegations in the pleadings. The plaint here alleged wrongful dispossession and claimed by reason thereof It has possession or, in the alternative, rent as is permitted by the provisions of the Bengal Tenancy Act.

2. The defence was nishkar right, limitation and in one case work done of a substantial character. The lower Appellate Court has come to findings which it is difficult to follow, because it declares the existence of a tenancy and at the same time directs that mesne profits be paid. Mr. Sinha has admitted that this is erroneous, and I feel that perhaps, the real points at issue were not clearly placed before the Court and hence there has been some confusion of ideas. Now, there can be no doubt that there was long possession by each defendant on his own behalf far beyond the statutory period and that, during this period, there has been no payment of rent by the defendants and no receipt of rent by the plaintiff in respect of the lands in suit, and thus there are the elements that are required for a plea in bar by reason of adverse possession. To escape from this predicament the plaintiff, contrary to the allegations in his own plaint, suggests that the defendants were his tenants and in support of that, relies on what is called an admission contained in paragraph G of the written statement. That paragraph has been read to us more than once and it is clear that it is hot an admission, but is merely a suggested explanation of how the present position of affairs might have come about.

3. It was an essential part of that suggestion that there was a custom of the character there described,’ but that custom has not been found to be established. And though at one time the learned Counsel for the plaintiff did state before us that the Maharaja had not denied the custom, when it was put to him whether he admitted the custom, he declined to do so, and for very good reason. In the circumstances, it cannot be fairly suggested that what is stated in paragraph 6 of the written statement, amounts to an admission. Then again, there is the further finding of the lower Appellate Court that there has been an encroachment on adjoining lands and thus those adjoining lands which are the subject-matter of this suit have become the subject of the original tenancy. Mr. Sinha has very frankly admitted that if they thus became part of the tenancy, the suit as at present framed must fail as being one inappropriate for the purpose of raising and procuring a decision of the question, whether or not there should be an enhancement in respect of this particular holding which has been enlarged by the encroachment. The result then is this: The facts apart from this theory of encroachment do not show there ever was the relationship of landlord and tenant between the plaintiff and the defendants, and so there is nothing in the way of the application of the plea of limitation. If the plea of limitation be applied then the suit fails. If, on the other hand, it be said that this finding of encroachment is conclusive then the suit is misconceived. Whichever view then is taken the suit fails. We, therefore, must reverse the decree of the lower Appellate Court and dismiss the suit with costs in all the Courts in each case.


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