Dongaram Dey vs Abdul Hamid

Bayley, J.—The plaintiff in this case sued the defendant as holding certain Bhita lands in his use and occupation, which Bhita lands he alleged were part of his talook purchased by him. The defendant''s allegation was that the lands were not in the talook alleged by the plaintiff, but were in another talook in which he was a co-sharer with the plaintiff.

The first Court, after a remand by the lower appellate Court, finally decided, on the 21st October 1868, that it had not the "smallest doubt that the lands are part of plaintiff''s purchased talook;" and then the Court goes on, "as no objection has been made to the rate of rent, and as defendant, having held and enjoyed the lands since the sale, is liable to an equitable rent for them, I give a decree for Rs. 10-14, and coats of Rs. 4-4, and fees As. 8-9, Total, Rs. 15-10-9."

On appeal, the Judge records: "I think with the Deputy Collector that the defendant holds rent paying land and land for which rent has been received by plaintiff''s predecessor, within the plaintiff''s talook. The evidence is scanty on this point, but I think sufficient." Then, as regards the rates, the lower appellate Court remarks: "I do not think that the defendant in his deposition on oath before this Court, and which with the plaintiffs statement formed the grounds from which to frame issues, raised any objection as to the rates so that it is necessary now to return this case for trial on this point." The lower appellate Court then concludes its judgment by dismissing the appeal with costs.

The defendant appeals specially.

The fifth and the last ground is that the provisions of Act X of 1859 have reference only to lands held for agricultural and horticultural purposes, and not to lands on which actual dwelling-houses are erected, and held by persons other than actual cultivators.

In regard to the last plea that this being a case of lands for building purposes, the provisions of Act X of 1859 do not apply. Kali Mohan Chatterjee v. Kali Krishna Roy Chowdhry 2 B.L.R. App. 39 has been cited. But the facts of that case were totally different from the facts in this. There the building was part of a range of buildings in the centre of the town, and therefore the rent of those houses, would not fall within the purview of Act X of 1859.

It is to be here also noticed that part of the land occupied by defendant was not occupied by the house, and besides this the point was not taken in either of the Courts below. On the whole I see no error in law in the judgment of the lower appellate Court, and I would therefore dismiss this appeal with costs.