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Petitioner: NURUL AMIN ALIAS NURUL AMIN CHOUDHURY VS Respondent: MESSRS M. M. ISPAHANI, LTD.
P L D 1967 Dacca 276
P L D 1967 Dacca 276
Before M. Idris, J
NURUL AMIN alias NURUL AMIN CHOUDHURY Plaintiff‑Appellant
Versus
MESSRS M. M. ISPAHANI, LTD.‑Defendant‑Respondent
Appeal from Appellate Decree No. 191 of 1961, decided on 28th May 1965.
Bengal Tenancy Act (VIII of 1885), S. 37, 4th Exception- Claim for exemption from provisions of Revenue Sale Law entitling purchaser to annual incumbrances‑Benefit of 4th Exception to S. 37 must be limited only to such portions of land as are covered by buildings, tanks, etc. Mere "passage" over land‑Cannot be regarded as protected interest‑"Building" Definition.
Wahid Ali and others v. Rahat Ali 12 C W N 1029; Jogendra Narain Roy Chowdhury v. Rai Kiran Chandra Rai Bahadur and others 23 C W N 315; Hem Prova Debi v. Sarat Chandra Basu and others 51 C W N 134; Stroud's Judicial Dictionary, 3rd Edn., p. 350; The Oxford English Dictionary, Vol. II, 1933 Edn., p. 1278 and James A. Ballentine : Law Dictionary with Pronounciation, 1948 Edn., p. 176 ref.
Kiron Chunder Roy v. Naimuddin Talukdar I L R 30 Cal. 498 not rel.
Debesh Chandra Bhattacherjee with B. B. Roy Choudhury for Appellant.
Syed Amjad Hossain and Syed A. N. M. Nasiruddin for Respondent.
JUDGMENT
This appeal arises out of a suit for recovery of possession on declaration of right and title of the plaintiff in the case land. The disputed land appertains to Moabad taluk bearing Touzi No. 20470 of the Chittagong Collectorate. The case of the plaintiff is that plaintiff has right and title in the case land as he purchased the taluk in the revenue sale on 21‑11‑1953 and thereafter took delivery of possession of it through Court. It is asserted that the defendants were not giving up possession of the land. Hence the suit.
The suit was compromised by defendants 1 and 3. Defen dant No. 8 consented to a decree being passed in favour of the plaintiff.
Defendant No. 2 contested the suit asserting right and title in plot No. 796 only. The case of defendant No. 2 is that the land corresponding to plot No. 796 was settled with Jogendra Lal Choudhury by the previous landlord, by a registered Pattah dated 7‑7‑1935. Jogendra Lal Choudhury possessed the land. Defendant No. 2 purchased it from Jogendra Lal Choudhury by a kabala dated 26‑8‑1948. Defendant No. 2 erected pacca building on it after purchase. They have protected interest in the suit land. It is also asserted that plaintiff has no right t o maintain the suit as the rent receiving interest of the landlord vested in the Provincial Government with effect from 14‑4‑56.
Defendant No. 5 also filed a written statement. He did not claim any interest in the case land. The learned Munsif, on a consideration of the evidence held that plaintiff had purchased the land in the revenue sale but that defendant No. 2 had protected interest in the disputed plot No. 796 as portion of the house of defendant No. 2 extended over it and there is also a passage over it for going to the houses of defendant No. 2 on the adjoining plots. The learned Munsif held that the suit was not barred under the East Bengal State Acquisition and Tenancy Act. Accordingly the suit was dismissed against defendant No. 2. It was decreed on compromise against defendant Nos. 1 and 3 and on consent against defendant No. 8.
On appeal, the learned Subordinate Judge held that the disputed land is a narrow but long passage to the buildings of defendant No. 2 standing within the boundary wall of the space commonly known as Ispahani Colony and that, as such, it is to be treated as a part and parcel of the buildings of defendant No. 2. The learned Subordinate Judge agreed with the learned Munsif that defendant No. 2 had protected interest in the case land. Accordingly the appeal was dismissed, Hence the second appeal at the instance of the plaintiff.
Mr. Debesh Chandra Bhattacherjee, learned Advocate on behalf, of the appellant has contended that the lower appellate Court erred in law in holding that defendant No. 2 had protected interest in the disputed plot No. 796, notwithstanding the finding of the learned Subordinate Judge that it is a narrow and long passage to the buildings within the boundary wall of the land commonly known as Ispahani Colony. The learned Munsif held that some portion of the case land was covered by buildings. But the learned Subordinate Judge did not hold that there was any building on any portion of the case land. The learned Subordinate Judge held that the suit land was the only passage to the Ispahani Colony covered by a number of buildings and that, as such, it is to be treated as a part and parcel of the pucca buildings. The learned Subordinate Judge made the following remarks:‑
.. . . . . the suit land is the only passage to the Ispahani Colony covered by a number of pucca buildings. Therefore, the suit lard should be treated as a part and parcel of the pucca buildings. In that view of the matter I agree with the learned Munsif that the contesting defendant is liable to be protected from evicting in respect of the suit land."
Where a person claims exemption from the provisions of the Revenue Sale Law which entitle a purchaser to annual incumbrances in respect of land in his possession, the benefit of the 4th exception to section 37 of the AN must be limited only to such‑ portions of land as are covered by buildings, tank, etc., and cannot be extended to cover those lands included in the lease on which buildings and tanks, etc. have not been constructed. This view finds support in the case of Wahid Ali and others v. Rahat Ali (12 C W N 1029) Jogendra Narain Roy Chowdhury v. Rai Kiran Chandra Rai Bahadur and others (23 G W N 315) and Hem Prova Debi v. Sarat Chandra Basu and others (51 C W N 134). In the present case, as there is a passage only over the case land, it cannot be regarded as protected interest.
Mr. Syed Amjad Hossain, learned Advocate on behalf of the respondent has contended that the case land is to be treated as a part of the buildings as it lies within the Ispahani Colony and is surrounded by a boundary wall and that, as such defendant No. 2 had got protected interest in it. In support of this contention, the learned Advocate has relied on the definition of building as given in serial No. 25 at page 350 in Stroud's Judicial Dictionary, 3rd Ed. The meaning of building as given in it is as follows:‑
" building' and `house', respectively, include the cartilage of a building or house, and include a building or house wholly or partly erected under statutory authority."
For the meaning of the term curtilage, the learned Advocate has referred to The Oxford English Dictionary, Vol. 11, 1933 Ed. at p.
1278. The meaning of cartilage as given there is "A small court yard, garth, or piece of ground attached to a dwelling‑house, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwelling‑house and its out buildings".
But the above meaning of "building" as given in Stroud's Judicial Dictionary, 3rd Ed. at p. 350 is quoted from Public Health (London) Act, 1891 (54.and 55 Vict., c. 76). The definition of building as given in the above Act would not include buildings in general. '
"Building" as explained in Law Dictionary with Pronuncia tions by James A. Ballentine, 1948 Ed. at p. 176 is "A fabric built or constructed, a structure; an edifice." 'In the Oxford y English Dictionary, Vol. 1, 1933 Ed. at p. 1162, "building" has been meant as "a structure, edifice: now a structure of the nature of a house built where it is to stand."
The learned Advocate on behalf of the respondent could not produce any decision in support of his contention that a narrow passage leading to buildings standing on a space surrounded by the same boundary wall is to be treated as a part of those buildings.
In the case of Kiron Chunder Roy v. Naimuddin Talukdar (I L R 30 Cal. 498) it has been held that the entire leased land on any part of which a house is situated, is protected. This case of the year 1903 has not been followed in any other case. I cannot agree with the view expressed in it.
The decision of the Courts below holding that the land corresponding to plot No. 796 is protected and dismissing the plaintiff's claim regarding it cannot be upheld. Plaintiff is entitled to get a decree with regard to this land.
The appeal is allowed, the decision of dismissal relating to plot No. 796 of the Courts below is set aside. The suit is decreed against defendant No. 2 and the plaintiff's right and title to plot No. 796 is declared. Plaintiff do get khas possession of this plot on ejectment of defendant No. With this modification, the judgment and decree passed by the lower appellate Court are armed. In circumstances of the case, I pass no order as to costs in this appeal.
The learned Advocate on behalf of the respondent prays for leave to appeal under clause 15 of the Letters Patent. The prayer is granted.
S. Q.
Appeal allowed.