Ofatoolah Surdar v. Dwarkanath Moitro

Reference under section 617 of Act X of 1877, from the Officiating Judge of Small Causes at Kooshtea.

The circumstances out of which the reference arose are these: The plaintiff was tenant of the first defendant, but not having paid his rent, a suit was brought against him, and a decree obtained by his landlord.

In execution of this decree, the tenure was sold under section 66 of Act VIII (B.C) of 1869, and purchased by the first defendant. It was admitted that the plaintiff had raised some paddy on the lands comprised in his tenure, and that at the time of the execution sale the crop was standing on the land unharvested. No mention, it appears, of the crop was made in the notification or certificate of sale. The auction-purchaser cut and carried off the crop.

The plaintiff then brought the present action for the recovery of damages, and the gist of his contention was, that the crop, not having been specifically sold, the defendant had no right to appropriate it. The defence was, that the crop passed with the lands, and that the defendants' right to appropriate it followed as a matter of necessary inference. It does not appear that any evidence was given as to any special custom.

The Judge was of opinion that standing crops were immovable property, and passed under an unreserved sale of the tenure to the auction-purchaser, and dismissed the plaintiffs' suit with costs, subject to the opinion of the High Court upon the question whether the unreserved sale of an under tenure, under section 66 of Act VIII (B.C) of 1869, vests in the auction-purchaser a right to the crop standing thereon.

The judgment of the High Court (1) was as follows:—

It is not stated that evidence was given of any special custom on this point.

The sale of the tenure would apparently pass all that was growing upon the land, unless the growing crops were excepted by the notification of sale, or else a custom were proved that the outgoing ryot should have the crops, subject to a payment for all and occupation of the land while they remained on the ground. If such a custom with tender of the proper amount were proved, the plaintiff might be entitled to recover, but otherwise he would not appear to have laid the foundation for a claim for damages, as the defendant merely cut down crops growing on his own land.