SRI NIRANJAN CHOUDHURY Vs. SMT LAKHE SINGH DEVI AND SRI RABATI MOHAN TALUKDAR

JUDGEMENT

(1.) AN interesting and some what important question needs determination in this appeal. The same is whether a "Gumtee" of a small structure normally having four wooden posts as its support meant for selling articles like betelnut and petty stationary and cosmetic articles) is an immoveable property, or moveable? This question has arisen on these facts. A suit was filed for eviction from such a Gumtee by Respondent No. 1 on the averment that the same belonged to her husband late Jagannath Singh and was let out to the Defendants on a monthly rental of Rs. 48/ -. Though rent was paid for sometime, but the Defendants became defaulter thereafter and the Gumtee was also needed by the Plaintiff for her own use and occupation. Among other points urged by the Defendants a plea was taken that the Gumtee had been sold by Jagannath Singh to Defendant No. 1 on 4.11.69, who in turn sold the same to Defendant No. 1 on 20.11.69. The sale was, however, not by registered deed it was evidenced by execution of receipt. As the consideration (sic) a sum of Rs. 800/ -, it has been held by the learned District Judge, Nowgong that the two deeds in question being Exts. Ka and Kha, are not admissible. Having taken this view the plea (sic) the suit was not maintainable has not been accepted. Though (sic) learned trial Court had accepted the documents as genuine, (sic) learned Court below doubted the same.

(2.) IF late Jagannath Singh had ceased to be the owner of (sic) premises there can be no denial that his wife, the Plaintiff (sic) not have filed the suit for eviction of the Defendants as tenants. So the question whether Jagannath Singh had in fact done so or not is relatable to the jurisdiction of the court and as such is examinable even in a proceeding of the present nature which has been treated as a revision in view of the decision of this Court in LPA No. 11 of 197(sic), which has held that no second appeal lies in such cases. Had it been that the learned District Judge disbelieved execution of Exts. Ka and Kha, that would have definitely been entirely a different matter, but the main point on which the case of the Defendants has been rejected is the inadmissibility of Exts. Ka and Kha. As to the genuineness what has been stated is only that the same was doubtful because sale to Defendant No. 1 was on 4.11.69 whereas sale by him to Defendant No. 2 was on 20.11.69. This cannot raise any doubt. Let it therefore be seen whether any error of law was committed in holding that Exts. Ka and Kha were not admissible.

(3.) TO decide this controversy, let the definition of "immoveable property" be first noted. As is known it has been defined in the Transfer of Property Act only by stating that it "does not include standing timber, growing crops, or grass". We may therefore turn to the definition of this expression in the General Clauses Act, whose Section 3(26) states: