RAJ BALLAV MONDAL Vs. RAJENDRA NARAIN MONDAL

JUDGEMENT

(1.) This rule was obtained on an application under Section 115 of the Civil P. C., and is directed against an order passed in a proceeding under Section 26(C) of the Bengal Tenancy Act. The opposite party is cue purchaser of an occupancy holding which comprises a tank, and in the notice which was served on the petitioner landlord under Section 26(C) of the Bengal Tenancy Act, the price of one Holding was stated to be Rs. 66 and it appears that the landlord's transfer fee paid by the opposite party was also calculated on that amount.

(2.) The landlord presented his application for purchase on March 10,1936, and he deposited the amount of consideration money as stated in the notice together with compensation at the rate of 10 per cent, upon the same. The purchaser resisted the application of the landlord substantially on the ground that the deposit was inadequate, the contention being that the total value of the holding as set out in the kobala was Rs. 395 and that, besides the sum of Rs. 88 which was the value of the land only there were two other amounts of Rs. 150 and Rs. 157 mentioned in the kobalas which represented respectively the value of trees and fish existing on the land. It was argued that as the landlord had not deposited the whole amount of Rs. 395 or the compensation payable in respect of the same, the application should be rejected. The trial Court passed a conditional order in favour of the landlord. The petitioner was directed to put in the landlord's fees paid by the purchaser, as well as the sum of Rs. 150 which was the value of the trees standing on the land as stated in the kobala within one week from the date of the order. On the amount being deposited the application would be allowed and in default it would stand dismissed. The Munsif was of opinion that the farther deposits directed by him were necessary under Clause (3) of Section 26(F) of the Bengal Tenancy Act, and as the trees were encumbrances within the meaning of that clause, the landlord was bound to pay the value of the trees as well before he would be allowed to pre-empt. As the fish could be removed and did not, according td the Munsif, constitute an encumbrance upon the property, the value of the fish was not to be paid by the landlord.

(3.) The present rule was issued against this order at the instance of the landlord, and his contention is that the Court below was wrong in holding that the trees were incumbrances within the meaning of Clause (3) of Section 26(F) of the Bengal Tenancy Act, and that he was not bound to deposit anything over and above the value of the holding as stated in the notice under Section 26(C) of the Act.