KRISHNA CHANDRA MUKHERJEE Vs. MANIK LAL MUKHERJEE

JUDGEMENT

(1.) On 4 July 1933, in the Court of the First Munsif at Alipore, a proceeding which was described, as Miscellaneous Case No. 151 of 1932 was disposed of by Narain Chandra Basu, Rai Bahadur, one of the Munsifs at Alipore. That proceeding was an application made by one Krishna Chandra Mukherjee, a cosharer landlord, under the provisions of Section 26-J, Ben. Ten. Act, for the purpose of recovering from Manik Lal Mukherjee a 5/12 share of the landlord's fee of 20 per cent, of the purchase money said to be due from Manik Lal Mukherjee on the ground that he had purchased an occupancy holding from a lady named Nityabala Debi for the sum of Rs. 10,000. The application was upon the basis that in the kobala the holding was described as being of a permanent character, a mourashi mukarari holding, whereas in fact it was no more than an occupancy right. It is important to bear in mind for our present purpose that in the petition put forward by Krishna Chandra there was a distinct and clear averment that what was described in the application as a "jote jama was raiyati and not a permanent tenure and in answer to the petition there was put before the Court a document which may not unreasonably be described as a written statement ." At any rate, it was an answer to the claim which was being made by Manik Lal and in that answer the respondent to the application or the "opposite party", as Mr. Mukerji has preferred to call him though he translated the Bengali description by the English word defendant , directly and clearly traversed the assertion which was put forward by the applicant that the jote jama was a raiyati and stated that it was, in fact, a mourashi mukarari tenure. I call attention to the form of the pleadings in the matter.

(2.) I put the word pleading in inverted commas as a technical term in order to demonstrate that the question of the nature of the tenancy which was in dispute or to use a word which perhaps is not altogether appropriate but which has been used in some of the cases, the status of the tenancy was a matter which was directly in issue between the parties at the time of the hearing of the application. That this was so is made abundantly clear and put beyond all controversy when one looks at the judgment which was given by the Munsif at Alipore, on 4th July 1933, for at the head of his judgment he put this: Points for decision: I. Is the application maintainable? II. Is opposite party 1, an occupancy raiyat?

(3.) And having carefully considered the matter, he comes to this conclusion: I therefore hold opposite party I is an occupancy raiyat and as such he should pay landlord's fee as prescribed by Section 26-D, Ben. Ten. Act.