Robert Wilson vs Radha Dulari Koer and Musahar Gope and others

This is a suit brought by the landlord to eject Defendant No. 1 from a holding which he has purchased from Defendant No. 2, the tenant, on the ground that the holding was not transferable. The Munsif found that the holding in question was not transferable without the landlord''s consent, but from certain circumstances in the case, he held that the landlord''s consent to the sale might be implied and he accordingly dismissed the suit. This decision has been reversed by the Subordinate Judge who has decreed the Plaintiffs suit. It is contended that the judgment of the Subordinate Judge is not in accordance with the provisions of sec. 574 of the Code and that his findings are insufficient to dispose of the case.

The judgment of the Subordinate Judge is as follows :-"The Munsif has held that Plaintiff-Appellant impliedly consented to the transfer of the holding by the second Defendant to the first Defendant. But the evidence to which be refers to support this finding does not at all support it. I set aside the judgment of the Munsif and decree that Plaintiff-Appellant be put in possession of the claimed land, and Defendant No. 1 do pay Plaintiff her costs in this Court and in the Court below.

We have on more than one occasion had to complain of the extreme brevity of this officer''s judgments, and in this particular case we think that he would have done better had he explained in his judgment why the Munsif was wrong in the view taken by him upon the evidence. But as we agree in the conclusion arrived at by him, we think it unnecessary to put the parties to further expense by sending the case back for a fresh judgment, and we will ourselves supply the reasoning which is wanting in the judgment of the Subordinate Judge.

The facts upon which the Munsif relies as showing the landlord''s implied consent to the transfer are these. The landlord had advertised the holding for sale in execution of a decree for rent. On the date fixed for sale the defaulting tenant (Defendant No. 2) paid into Court part of the amount decreed against him, stating that he had borrowed it from Defendant No. 1. The amount was received by the Plaintiff''s pleader and the sale was postponed till the following month. On the day prior to the adjourned date of sale, the Defendant No. 2 paid in the balance of the decree, stating that he had procured the money by selling his holding to Defendant No. 1. This money was apparently taken out of Court by the Plaintiff''s pleader and from this circumstance the Munsif inferred that the Plaintiff had given her consent to the transfer. But no such inference really arises. The amount of the decree having been paid into Court, and the decree having thus been satisfied, the Plaintiff had a right to draw the money out of Court without regard to the manner in which or the source from which the judgment-debtor had procured it, and in point of fact there is nothing to show that the Plaintiff had any knowledge of the contents of the judgment-debtor''s petition.

In truth the Munsif apparently inferred the Plaintiff''s consent to the transfer, merely because he thought that otherwise an injustice might be perpetrated.

The holding not being transferable, and the Defendant No. 2 having abandoned possession of it, the Plaintiff is entitled to eject Defendant No. 1. This is in accordance with the decision of the Full Bench in the case of Norendro Narain Roy Chowdhuri v. Ishan Chandra Sen 13 B. L. R. 274 which has been followed in numerous cases. It will be sufficient to refer to the cases of Srishteedhur Biswas v. Mudon Sardar I. L. R. 9 Cal. 648 and Kali Nath Chakravarti v. Upendra Chundra Chowdry I. L. R. 24 Cal. 212. The case of Kabil Sirdar v. Chundra Nath Nag Chowdhuri I. L. R. 20 Cal. 590 which has been relied on by the Appellant, has no application to the present case. In that case the land had not been altogether abandoned by the raiyat and it was therefore held that the principle of the decision of the Full Bench did not apply. The appeal is dismissed with costs.