Bhujanga Bhusan Mandal vs Bhikuram Lohar

Banerjee, J.—This Rule is directed against two orders passed by the court of munsif at Bishnupore. By the first of the two orders a suit was stayed, under the provisions of Section 46 of the West Bengal Estates Acquisition Act, 1953, until final publication of the record of rights, u/s 44(2) of the said Act. By the second order it was directed that the question as to the abatement of the suit would be considered after the period provided for revision and appeal against the finally published record expired.

The Plaintiffs Petitioners filed a suit, being T.S. No. 88 of 1956, against opposite parties 1, 2 and 3 pleading as hereinbelow indicated:

(a) Subordinate to one Ashutosh Roy two persons Krishna Chandra Dey and Shyama Charan Sharma were tenants in respect of a jama bearing an annual rent of Rs. 3. The superior landlord obtained a decree for recovery of arrears of rent, in Rent Suit No. 371 of 1917, in the first court of the munsif at Bishnupur. The said decree was put into execution in Rent Execution Case, No. 504 of 1918 and the defaulting tenure was sold in auction. The father of the Petitioners, Hrishikesh Mandal, since deceased, purchased the defaulting tenure in the bendmi of one Nemai Pal and delivery of; possession was obtained through court.

(b) Shyama Charan Sharma had mortgaged his interest in the defaulting tenure along with other properties in favour of the father of the Petitioners. After the death of Shyama Charan Sharma his heirs wanted a release from the mortgage debt.

(c) The Petitioners'' father Hrishikesh Mondal obtained a kobala, dated August 25, 1919, from the heirs of Shyama Charan Sharma in respect of one-half share of Shyama Charan Sharma in the aforesaid jama of Rs. 3.

(d) After the purchase of aforesaid certain portions of the land of the said jama, as described in the plaint, was given in bhag cultivation to the opposite party No. 1 and to the father of opposite party No. 2, who executed the barga kabuliyat in favour of the father of the Petitioners for one year, namely, 1326 B.S. and thereafter another such kabuliyat, dated February 19, 1920, was executed by the said bargadars in favour of the father of the Petitioners for two years, namely, 1327 and 1328 B.S. After the expiry of the said term of the kabuliyat the said bargadars continued the cultivation of the land as bhagchasis or bargadars and continued to deliver the stipulated share of the produce to the father of the Petitioner so long as he was alive and thereafter to the Petitioners. In the last cadastral survey, the interest of the father of the Petitioners was recorded in c.s. khatian No. 94 but quite incorrectly the name of opposite party No. 1 only was recorded as a raiyat in c.s. khatian No. 96 and in the remarks column it was indicated that the said opposite party No. 1 was liable to pay half share of the produce and cesses.

(e) The opposite party No. 1 and the father of opposite party No. 2 Govinda Lohar, since deceased, were both cultivating the said lands as bargadars and neither of them had claim any tenancy in the said lands at any time previous to the attestation proceedings of the revisional settlement, which were being held under the provisions of the West Bengal Estates Acquisition Act. During the course of the settlement operation, however, the opposite party No. 1 alone claimed a tenancy right on the basis of the entry of his name as a raiyat, in the previous settlement records and the attestation officer accepted the claim made by the opposite party No. 1 and recorded his name as a raiyat sthitiban in the revisional survey which was then in progress.

The Plaintiffs Petitioners, inter alia, claimed that a decree be passed declaring that the lands described in the schedule to the plaint were khas lands of the Plaintiffs and the Defendants had no right of tenancy and they were simply ordinary bargadars.

Before the trial court, the suit was being contested by the opposite party No. 1 alone. On January 17, 1958, the learned munsif passed an order to the following effect:

The suit do remain stayed till final publication of the "record of rights under Sub-section (2) of Section 44 of the West "Bengal Estates Acquisition Act, 1953, u/s 46 "of that Act.

After the final publication of the record of rights, in which the tenant opposite parties were recorded as raiyats sthitiban, the aforesaid order for stay was vacated by an order dated March 18, 1957 and the suit was ordered to proceed. Thereafter, the West Bengal Ordinance No. X of 1957 was promulgated on November 4, 1957 and the opposite parties took the objection that in view of the provisions contained in Section 8 of the said Ordinance an order should be passed regarding the abatement of the suit.

By an order dated November 27, 1957, the learned munsif accepted the contention of the opposite parties and held that the suit involved a question as to the determination of the status of the tenants and was liable to abate. He however, directed that the order as to abatement of the suit would be considered after the expiry of the time fixed for revision and appeal against the entry made in the record of rights. The learned munsif fixed February 5, 1958, for further consideration of the matter and in the meantime stayed further proceedings in the suit.

The Petitioners obtained the present Rule against both the orders dated January 17, 1956, and November 27, 1957. So far as the order dated January 17, 1956, is concerned, it has spent its force because the stay order was vacated by the learned munsif himself, on March 18, 1957. Mr. Mitter, learned advocate for the Petitioners, however, brought the stay order to my notice for the purpose of showing that the learned munsif was in error from the beginning in thinking that the suit was of such a nature that it attracted the provisions of Section 46 of the said Act. I have taken notice of the said order but I hold that inasmuch as the said order has spent its force it does not call for my interference at this stage.

So far as the order dated November 27, 1957, is concerned, Mr. Mitter contended that a suit in which title is sought to be determined, namely, whether X is a tenant in respect of a particular land or Y is the landlord thereof, does not come within the purview of Section 46 of the West Bengal Estates Acquisition Act. Mr. Mitter argued that here was a case in which the question of title of the opposite parties, namely, whether they were tenants or bargadars was in issue and therefore the case did not fall within the mischief of Section 46 of the Act. Reliance was placed by-Mr. Mitter on the decision of a Division Bench of this Court in Lala Gangaram v. Khishna Gopal Jhunjhunwalla (1955) 59 C. W. N. 1006 in support of his contention.

Mr. Abinash Chandra Ghosh, learned advocate for opposite party, argued that since the time of the last settlement record, published in 1925, the opposite party was recorded as a raiyat and his liability was to pay rent in kind calculated at half the produce and also to pay cesses, the opposite party was, therefore, not holding the land under a system known as Adhi or Barga, being liable to pay a share of the produce to the person whose land he was cultivating within the meaning of Section 2(17) of the Bengal Tenancy Act. But was a person having an interest in the land and having the status of a raiyat? Since it was that status which was being challenged and since the Court was called upon to determine the status of the tenant, Mr. Ghosh argued that the suit fell within the mischief of Section 46 of the West Bengal Estates Acquisition Act. Mr. Ghosh submitted that prior to the introduction of the proviso to Section 2(17) of the Bengal Tenancy Act, by Bengal Act IV of 1928, even an adhiar was very largely treated as a tenant in the absence of proofs that he was a labourer. He relied for this proposition on two decisions of this Court. Reported in Debnath Das Bairagi and Ors. v. Ram Sundar Barman (1915) 19 C.W.N. 1205 and Secretary of State v. Gobind Prosad (1916) 21 C. W. N. 505.

I am unable to accept the contention put forward by Mr. Ghosh. The mischief of Section 46 of the West Bengal Estates Acquisition Act is attracted to a suit only when two of the following questions are involved in the suit:

(a) determination of rent, or

(b) determination of the status of any tenant or the incidents of the tenancy to which the record of rights relate.

In my opinion, such a suit must be one in which there is no dispute that the person in occupation is a tenant. Disputes must be limited to the rent payable by the tenant or determination of the status of the tenant or the incidents of the tenancy. But if the tenancy itself is not admitted and the Court is called upon to decide whether the relationship of landlord and tenant exists between the contesting parties, then Section 46 of the West Bengal Estates Acquisition Act will not apply and the suit shall not be stayed.

In the present suit the Plaintiffs Petitioners do not admit that the Defendants opposite parties are tenants at all but claim that they are bargadars within the meaning of the proviso to Section 2(17) of the Bengal Tenancy Act. The Plaintiffs'' claim may be frivolous and may fail but nevertheless their claim has to be decided by the Court, the jurisdiction of which the Plaintiffs invoked. I am of opinion that Mr. Mitter is right in his contention.

I, therefore, set aside the order dated November 27, 1957, passed by the court below and direct the learned munsif to proceed with the hearing of the suit.

This Rule is made absolute but I make no order as to costs.