Hence, the main issue, on question of fact, between the parties was Is the land in dispute Mal land of Touzi No.
When the appeal was put up for hearing before a Division Bench on March 8, 1954, the learned judges thought it necessary to call for a finding on the question whether ,possession had already been delivered to the successful plaintiff in execution of the decree of the Trial Court, before the Amending Act came into force.
6 and other Touzies, and that the defendants interest was number protected from annulment under s. 37 of the Act of 1859.
The learned Subordinate judge held that the land in suit was Mal land of the Touzi No.
The High Court further companysidered the effect of the proceedings taken at the execution stage.
It appears that the plaintiff had made an application for delivery of possession on March 28, 1949, and the following day, on March 29, 1949, the judgment debtor, who had already preferred his appeal to the High Court, fiied a petition to the Court praying for one months time to bring a stay order from the High Court and for stay of process meanwhile.
On this question, the learned Subordinate judge, by his judgment and decree dated April 20, 1948, held in favour of the plaintiff and decreed the suit for possession, with mesne profits, to be ascertained later.
Appeal from the judgment and decree dated June 16, 1958, of the Calcutta High Court in Appeal from Original Decree No.
It was also claimed by the defendants that the lands in dispute were Brabmottar Lakheraj lands which were never within the regularly assessed estate, Touzi No.
The learned Subordinate judge submitted a finding to the High Court to the effect that possession of the disputed property had been delivered to the decree holder, as alleged by him, on March 29, 1949.
This enquiry was instituted in view of the sworn petition filed on behalf of the plaintiff at the hearing in the High Court that he had already obtained possession in execution of the decree on March 29, 1949, and that, therefore, s. 7 of the Amending Act did number render the appeal void.
The first defendant appealed to the High Court in July, 1948 and the appeal was pending when the Amending Act was enacted.
Re call and put up in the presence of both parties Inform Nazir.
Sen, S. N. Mukherjee and R. R. Biswas for the appellant.
The learned Subordinate judge dispo sed of the petition, in the following terms Judgment debtor files a petition praying for one months time to bring a stay order and for stay of process in the meantime.
The defendant appellant in the High Court companytested this statement fact.
The suit out of which this appeal arises was instituted as long ago as December 6, 1945, and has had rather a long and chequered career.
The High Court accepted the finding of the Trial Court that possession had been delivered to the decree holder in pursuance of the Trial Courts decree.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
6 or is it Lakheraj?
250 of 1961.
May 7.
After the auction purchase aforesaid, he obtained possession from the Collector in May June, 1936, and there after annulled and avoided all intermediary interests except those protected under s. 37 of Act XI of 1859, by appropriate numberices, in or about June, 1936 The land in dispute was described in the plaint as Mal land of the said Touzi and other Touzies and the plaintiff asked for Khas possession to the extent of his 1/6th share, jointly with the defendants.
The suit was companytested by the first defendant respondent on a number of grounds, of which it is necessary to mention only the companytention of fact, that the suit lands were number Mal lands, as alleged by the plaintiff, and had never been assessed to revenue, number were they included in the Mal assets of Touzi No.
C, Chatterjee and P. K. Ghosh for the respondents.
6 of the 24 Parganas companylectorate.
Heard learned lawyer.
144 of 1948.
The plaintiff, who is the appellant in this Court, instituted the suit for ejectment of the defendants from the disputed property on the ground that he had annulled the defendants interests, whatever they were, under s. 37 of the Bengal Land Revenue Sales Act Central Act XI of 1859 , by virtue of his auction purchase, on January 6, 1936, of the entire revenue paying estate, Touzi No.
The judgment of the Court was delivered by SINHA C.J. The main question for determination in this appeal, on a certificate granted by the High Court of Calcutta, is the scope and effect of ss.
4 7 of the Bengal Land Revenue Sales West Bengal Amendment Act West Bengal Act VII of 1950 which hereinafter will be referred to as the Amending Act which came into force on March 15, 1950.
