BANKU BEHARI MUKHEKJEE Vs. AMULYA CHANDRA GHOSH
LAWS(CAL)-1961-6-5
HIGH COURT OF CALCUTTA
Decided on June 13,1961

BANKU BEHARI MUKHEKJEE Appellant
VERSUS
AMULYA CHANDRA GHOSH Respondents

JUDGEMENT

- (1.) THIS Rule- arises out of a preceding for ejectment of a thika tenant, under section 5 of the Calcutta Thika Tenancy Act, 1949. The ejectment was sought by the landlords on ground No. (vi) of section 3 of the Act, that is to say that the thika tenant held the land comprised in the holding under a registered lease and the term of the lease had expired. A registered lease was put in evidence (Ext. 1 ). The thika tenant, who is the petitioner in this Rule, filed an objection in the aforesaid proceeding alleging that he had been inducted by the predecessors of the present landlords, but, after their death, the present landlords, ''under misrepresentation, fraud and undue influence got a document registered in his favour. The said document was neither read over nor explained nor the contents thereof was ever made known to the defendant (meaning the present petitioner), who is an illiterate person. "
(2.) THE thika tenant wanted to adduce evidence to substantiate this case. The Controller, however, thought that the thika tenant could not be permitted to raise this plea in the proceeding under section 5 of the Act. He, therefore, allowed the application and directed eviction of the thika tenant from the disputed land. The same view was taken by the court which heard the appeal.
(3.) AGAINST the order made by the appellate court, the thika tenant moved this Court and obtained a Rule, being Civil Revision Case No. 2504 of 1955. That Rule came up for hearing before Das Gupta and Guha, JJ. Their Lordships made the Rule absolute and remanded the case to the Controller for re-hearing with the following observations:- "clearly, before the landlord could obtain a decree for ejectment on the ground mentioned in his application, he had to show two things-first, that the land was held by the tenant under a registered lease and secondly, that the term of the lease had expired. Prima facie, the production of the registered lease and evidence that the lease covered the lands in question, would be sufficient to establish this fact. If, however, as in the present case, the tenant takes the plea that though the execution of the lease was his physical act, the execution was not his mental act and that the lease had been obtained from him by fraud, misrepresentation and undue influence and he had executed it without understanding the contents thereof, we can see no reason why he should not be allowed to prove that obviously, the burden of proving that the document was obtained by fraud, undue influence and misrepresentation and that the executant did not understand the context of the lease before he executed the same, would be on the tenant. ";


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