Kalli Prosanno Chuckerbutty vs Chundra Sakai And Anr. on 5 July, 1895

Calcutta High Court
Kalli Prosanno Chuckerbutty vs Chundra Sakai And Anr. on 5 July, 1895
Equivalent citations: (1896) ILR 23 Cal 254
Author: Gordon
Bench: Norris, Gordon


Gordon, J.

1. The plaintiff brought this suit to eject the defendants from three plots of land which he purchased at an auction sale for arrears of rent due in respect thereof. The defendants denied the plaintiff’s title and the judgment-debtor’s right to possession over the disputed land,

2. The first Court gave effect to the defence and dismissed the suit.

3. On appeal, the Subordinate Judge has reversed the decree of the Munsif.

4. On second appeal, it is contended before us that the plaintiff is not entitled to eject the defendants, because he purchased his holding under Section 159 of the Tenancy Act subject to an incumbrance as denned in Section 161 of that Act; and that he could annul that incumbrance only in the manner provided in Section 167.

5. We think that this contention must prevail.

6. The Subordinate Judge has found that there was an exchange of land, and that the defendants have held this land under that exchange for more than thirty years; but he was of opinion that the exchange was not valid, because it was not ratified by the landlord. We do not think that the question, whether the exchange was valid or not, because it was not ratified by the landlord, arises in this case. We think that the exchange was an incumbrance within the meaning of Section 161. That section runs thus: “For the purpose of this chapter (i) the ‘term incumbrance’ used with reference to a tenancy means any lien, sub-tenancy, easement or other right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein, and not being a protected interest as defined in the last foregoing section.” It seems to us that the exchange by which this land was acquired by the defendants was in limitation, if not, in fact, in destruction of the original tenant’s right in the holding.

7. That being so, the plaintiff was not entitled to eject the defendants without having taken proper proceedings to annul the incumbrance as provided by law.

8. The appeal is allowed, the decree of the lower Appellate Court set aside, and that of the first Court dismissing the plaintiff’s suit restored with costs.

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