SOLAIMAN MOOSAJI ASMAL Vs. JATINDRA NATH MONDAL

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the Subordinate Judge, Third Court of the 24 Parganas in a partition suit brought on 20 January 1920. It appears that the whole of the land with which we are concerned is about three bighas in area and, in 1893, a gentleman of the name Melosch took a lease for nine years of what was described as two bighas out of the three bighas and it was further said that the bigha which was not included was the share of Shyam Lal and Kishori Lal Mandal. Melosch was minded to put up a rice-mill and he covenanted to erect a brick-built machine-room and rice and paddy godowns at his own expense upon this land. He further covenanted that he should have the right, on the expiry of the term, to remove the-buildings at his own costs and that he should not be competent to claim any damages in respect of the removal from the lessors. There is a clause which seems to operate nothing: If it be necessary to sell the same, I shall sell the same to you at the market price.

(2.) The lessors under that lease were, speaking substantially, the plaintiffs in the present suit, and, when that lease, came to an end in September 1902, the present defendant 1 whom I shall call Musaji executed a kabuliat on the same lines. The covenant ran as follows: In addition to the machine-room etc, standing on the said land which was purchased by me, I shall erect machine-rooms etc, according to requirements....On the expiry of the term within one month thereof, I shall remove the buildings etc, belonging to me at my own cost. I shall not be competent to claim any damages in respect of the same from you; and if it be necessary to sell the same, I shall sell the same to you at the market price.

(3.) Now, that term lasted till 1912. In the meantime in 1904, Musaji, defendant 1, purchased a one third share of the entire property from two of the co-owners who had not been lessors to him. After that in December 1909, he entered into a. fresh kabuliat with the plaintiffs excluding certain property: the share of your cosharer Babu Kishori Lal Mandal specified in schedule below.