Ajit Kumar Basu vs Nishikanta Mukherjee

Das Gupta, J.—The Appellants held a mourashi moliarari lease under a tenure in Dihi-Panchannagram. This tenure was sold in auction under the provisions of Act VII of 1868 read with Act XI of 1859 and was purchased by Nishi Kanta Mukherjee, Respondent No. 1. Thereafter he instituted a suit against the present Appellants praying for ejectment of the Appellants in accordance with the provisions of Section 17 of Act VII of 1868. He obtained a decree for ejectment and that decree was upheld in appeal to this Court. It appears that in the proceedings for execution of the decree possession was actually obtained by the decree-holder, but after certain proceedings with the details of which we are not concerned, the writ of delivery of possession has been recalled so that the position, in the words used by the learned court below, is that the Title Execution Case No. 3 of 1944 is still pending for delivery of possession to the decree-holder opposite party as per terms of the decree passed by the High Court in F. A. 233 of 1944. On August 20, 1954,. the decree-holder (Respondent No. 1) filed an application praying for issue of a fresh writ of delivery of possession. This was resisted by the present Appellants who pleaded in an application u/s 47 of the CPC that they were entitled to the benefit of Section 7(2) of the Bengal Land Revenue Sales Act of 1950 and that in consequence of the provisions in Section 7(2) of Act VII of 1950 the decree passed by the High Court must be held to be void. The learned Subordinate Judge held that the provisions of Section 7(2) of Act VII of 1950 could not in any way affect a decree passed in pursuance of Section 12 of Act VII of 1868 as Section 7(2) of Act VII of 1950 applied only to decrees for ejectment passed in pursuance of Section 37 or Section 52 of Act XI of 1859. In this view, he rejected the judgment-debtor''s contention and dismissed his application u/s 47 of the CPC and ordered issue of a writ for giving delivery of possession to the decree-holder.

It is urged now before us on behalf of the judgment-debtor that the learned court below erred in law in holding that the provisions of Section 7(2) of the Land Revenue Sales Act of 1950 (West Bengal Act VII of 1950) had no application to the decree passed against him. It is contended that the provisions in Section 7(2) of Act VII of 1950 as regards decrees for ejectment passed in pursuance of Section 37 of Act XI of 1859 necessarily apply to decrees for ejectment passed in pursuance of Section 12 of Act VII of 1868 inasmuch as these provisions are substantially the same as the provisions of Section 12 of Act VII of 1868 and that the fact that Act VII of 1868 was not mentioned by name in Act VII of 1950 is of no consequence as Act VII of 1868 was incorporated in Act XI of 1859. Special reliance is placed on Section 30 of Act VII of 1868, which is in these words:

This Act shall be read with, and taken as part of, the Bengal Land Revenue Sales Act, 1859, as modified for the time being, and all references in this Act to the Bengal Land Revenue Sales Act, 1859, or any provision thereof shall be deemed to be references to the said Act or provision, as,the case may be, for the time being in force.

It is argued that the inevitable consequence of Section 30 is that the provisions of Section 12 of Act VII of 1868 are to be read in Act XI of 1859 as if written there with pen and ink. That, in my opinion, is certainly the position in law and we must proceed on the basis as if what was enacted by the Legislature in Section 12 of Act VII of 1868 appeared as an integral part of the earlier Statute. Act XI of 1859. The provisions of Section 12 are in these words:

The purchaser of any tenure sold under the provisions of Section 11 of this Act shall acquire it free from all incumbrances which may have been imposed upon it after its creation, or after the time of settlement, whichever may have last occurred, and shall be entitled to avoid and annual all under-tenures, and forthwith to eject all under-tenants, with the following exceptions:

First-Istitnrari or mokurari tenures which have been held at fixed rent from the time of the Permanent Settlement;

Secondly-Tenures existing at the time of Permanent Settlement, which have not been held at a fixed rent;

Provided always that the rent of such tenures shall be liable to enhancement under any law for the time being in force for the enhancement of the rent of such tenures,

Thirdly-Tenures created or recognised by the settlement proceedings of any current temporary settlement, as tenures bearing a rent which is fixed for the period of such settlement;

Fourthly-Tenures of lands whereon dwelling houses, manufactories or other permanent buildings have been erected, or whereon permanent gardens, plantations, tanks canals, places of worship or burning or burying grounds have been made.

They are, it is true, similar, to a great extent, to the provisions of the old Section 37 of Act XI of 1859. The vital difference that remains, however, is-whereas in Section 37 the rights of a purchaser, of an estate was being dealt with, Section 12 as set out above deals with the rights of a purchaser of a tenure. Section 12 of Act VII of 1868, therefore, could not and did not merge in Section 37 of Act XI of 1859. It gave to the purchaser of a tenure rights somewhat similar to the rights which Section 37 which was already in Act XI of 1859 gave to the purchasers of an estate but the provisions were distinct and independent and remained so in spite of their becoming part of Act XI of 1859. When, therefore, any later Act speaks of a decree in pursuance of Section 37 of Act XI of 1859, it cannot by any stretch of imagination be considered to be referring also to a decree in pursuance of the provisions which were enacted in Section 12 of Act VII of 1868. The fact that the provisions of Section 12 of Act VII of 1868 must be considered in law as having become part and parcel of Act XI of 1859 could not produce the consequence that a decree in pursuance of Section 12 of Act VII of 1868 would become a decree in pursuance of the provisions of Section 37 of Act XI of 1859.

Mr. Mitter tried to impress upon us what, according to him, will be the undesirable consequence which would follow if the protection given by Section 7(2) to persons against whom decrees have been passed in pursuance of Section 37 of Act XI of 1859 be not extended to persons against whom decrees for ejectment in pursuance of Section 12 of Act VII of 1868 have been passed. It will not only be unwise but improper for us to consider whether the consequence following on a proper interpretation of the Statute is desirable or otherwise if, as suggested by Mr. Mitter, undesirable consequences will follow if the protection mentioned above is not extended to persons against whom decrees for ejectment in pursuance of Section 12 of Act VII of 1868 have been passed, it will be for the Legislature to take action to remove such undesirable consequences. It will be intolerable if we from our place in the judiciary tried to do what the Legislature in its wisdom has not done. I have, therefore, come to the conclusion that the learned Subordinate Judge was right in his view that the provisions of Section 7(2) of Act VII of 1950 were not available to the judgment-debtors against whom the decree for ejectment had been passed in pursuance of the provisions of Section 12 of Act VII of 1868.

Mr. Mitter next tried to convince us that if the legal position be that the protection given by the Legislature to persons against whom decrees for ejectment have been passed in pursuance of Section 37 of Act XI of 1859 is not available to persons against whom decrees for ejectment in pursuance of Section 12 of Act VII of 1868 have been passed Article 14 of the Constitution is contravened and that consequence of that would be that Section 12 of Act VII of 1868 would be void. In my judgment, there can be no scope for an argument that the fact that the protection given by Section 7 to persons against whom decrees for ejectment have been passed in pursuance of Section 37 of Act XI of 1859 is not available to persons against whom decree for ejectment have been passed u/s 12 of Act VII of 1868, results in the denial of equal protection of laws, as guaranteed of Article 14 of the Constitution. On the face of it, the class of persons benefited by Section 7(2) of Act VII of 1950 is distinct from the class of persons who come within the operation of Section 12 of Act VII of 1868. This is not a case of different legislation for people similarly circumstanced. I am unable to see that there is any discrimination at all. It might be mentioned however, that even if it was thought that the legislation in Section 7(2) of Act VII of 1950, contravenes the provisions of Article 14 of the Constitution, the result will be that Section 7(2) of Act VII of 1950 will be void. The result will not be as contended by Mr. Mitter that Section 12 of Act VII of 1868 will be void. My own view, as indicated above, is that Section 7(2) of Act VII of 1950 does not in any way contravene Article 14 of the Constitution.

I would for the reasons stated above dismiss the appeal with cost.

Renupada Mukherjee, J.

I agree.