Tirthanund Thakoor vs Mutty Lall Misser on 1 May, 1878

Calcutta High Court
Tirthanund Thakoor vs Mutty Lall Misser on 1 May, 1878
Equivalent citations: (1878) ILR 3 Cal 774
Author: R Garth
Bench: R Garth, Mcdonell


Richard Garth, C.J.

1. We have not the least doubt about this case; and the time of the Court has been unnecessarily occupied by the respondent’s pleader attempting to urge a point, which has been decided against him by the learned Judge of this Court, and against which decision he has not thought fit to appeal.

2. The only question is, whether it is necessary or proper that there should be a remand; and the appeal is made to us upon the ground that the learned Judge was wrong in ordering a remand, when it had not been proved that there was any right by custom in the defendant, the occupancy tenant, to divide his tenure and transfer it to different persons.

3. An issue was raised distinctly by the Munsif, at the instance of the defendant, whether an occupancy ryot had a right by custom to transfer his tenure to different persons.

4. The Munsif found that occupancy ryots had a right in that locality to transfer their tenures generally. Whether he was justified, upon the evidence, in arriving at that conclusion, appears very doubtful. But assuming him to have been right in that finding, he did not go on to find, nor was there a particle of evidence upon which he could properly find, that an occupancy ryot had a right to divide his tenure and to transfer different parts of it to different people.

5. Under these circumstances, the defendant, who took, and who professed to take, a portion of the tenure under a transfer of this kind, was a mere trespasser.

6. It has bean suggested that the original tenant would under such circumstances remain liable for the rent. But the original tenant has not paid any rent since the transfer; and when a suit was brought against him, he repudiated the tenure, and said that he had transferred it to different persons, of whom the defendant is one. If then the tenant could not transfer the tenure by custom, the zemindar had a right to treat the defendant as a trespasser, and to eject him.

7. The District Judge has come to a just conclusion, and we think that, under the circumstances, it would not be proper to remand the case. The judgment of Mr. Justice Birch will, therefore, be reversed, and the judgment of the District Judge will stand.

8. The appellant ought to have his costs of both hearings in this Court.

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