Ijjat Ali Mandal vs Harekrishna Majumdar

R. Bhattacharya, J.—This Letters patent appear has been directed against the judgment and decree passed by our rearmed (sic) A.C. Gupta J., as his Lordship then was, in the second Appeal which was (sic) by the (sic). The Said appeal was neared analogously along with tow other appears and a common judgment was passed avowing the said appear and decreeing the Appellants the origami suit was dismissed by the trial Court and against that decision an appeal was taken to the District Judge, but the same was dismissed by the learned Subordinate Judge who heard the appeal.

The Plaintiffs Harekrishna Majumdar and other started the suit for eviction against the Defendants on the abnegation that the Defendants were then korja tenants under the Bengal Tenancy Act in respect of the suit land. They alleged that they wanted the land for their own cultivation and for that purpose they served notices upon the Defendants requiring them to vacate the suit land on the expiry of the year 362 B.S. The suit was filed by the Plaintiffs on June 1,1956, that is to say, after the date of vesting under the provision of the west Bengal Estates Acquisition Act, 1953, (hereinafter referred to as the Act). Amongst several defences, the Defendants pleaded in their written statement that the suit was barred by the provisions of, the Act and that the State of West Bengal was a necessary party. The trial Court found that the Plaintiffs wanted the suit land for direct cultivation and that, as the notice was duly served, the Plaintiffs could claim the reliefs, but due to the promulgation of the Act and as the interest of the raiyats having under-raiyats had vested in the Stated since Baisakh 1363 B.S. the Plaintiffs were held to be not entitled to get any relief. The suits were found not maintainable. The ground of refusal of the claim of the plain tiffs was that the Plaintiffs were not in khas possession of the disputed land and therefore, after the date of vesting they could not recover possession by ousting the Defendants who had been the under tenants under the Plaintiffs. In the First Appeal also the suit was not found maintainable. It was canvassed before the learned Subordinate Judge that after the notice period the tenancy of the Defendants should have been deemed to be terminated and that the Plaintiffs ought to have been taken as in khas possession of the suit land. The learned Subordinate Judge was of the view that unless all the grounds necessary for eviction of the under-tenant were proved in Court and unless a decree was passed, the tenancy of the Defendant would not have been presumed to be determined. Moreover, the learned Subordinate Judge held that unless the Plaintiffs were in khas possession, they had no right to retain the land in question. 10 this view of the matter, the suit was found not maintainable and the trial Court''s decision was upheld.

In the Second Appeal Gupta J. followed the decision of P.B. Mukharji (as his Lordship then was) in the case of Taraprosad Mukherjee and Ors. v. Ganesh Chandra Mondal 70 C.W.N. 652. According to Gupta J.:

The Plaintiffs have undoubtedly the right to maintain the suit for possession against the Defendant even if it is assumed that the respective tenancies had been Subsisting on the 1st day of Baisakh. 1363 B.S. That the Plaintiffs are otherwise entitled to retain the lands is clear from the facts stated above. That they mean to make them khas is also obvious from the fact that they terminated the tenancies by serving on the tenants notices as required u/s 48C(d)of the Bengal Tenancy Act and filed the instant suits.

Following the decision of P.B. Mukharji J. it Was held by Gupta J. that as the Plaintiffs were entitled to get the suit land in khas, such land should be deemed to be in khas possession of the Plaintiffs. The sum and Substance of the view of Gupta J. will appear in the following portion of his judgment:

I think the expression ''in khas possession'' in Section 6(1)(d) implies besides actual physical possession, a present right to possess the land in khas at the date of vesting. In the instant suits after the termination by the Plaintiffs of the respective tenancies of the different sets of Defendants with the expiry of the month of Chaitra 1362 B.S., from the 1st day of Baisakh, 1363 B.S. the Defendants were trespassers on the lands and could have no Subsisting right thereon.

Towards the end of the judgment Gupta J. concludes:

Therefore, with effect from 1st Baisakh, 1363 B.S. the Defendants had ceased to have any right or interest in lands forming the subject-matter of the three suits and their possession of the same was unlawful; as such, the Plaintiffs must be held to have been in khas possession of the lands at the date of vesting and entitled to exercise the right of retention.

We have heard Mr. Kundu, the learned Advocate for the Appellants and Mr. Roy Chowdhury for the Respondents. The contention of Mr. Kundu is that the interpretation of Section 6(1)(d) of the Act appearing in the judgment of Gupta J. as also the meaning of the words ''khas possession'' mentioned in Clause (d) of Sub-section (1) of Section 6 of the Act are clearly erroneous in view of the plain grammatical construction of the section and the scheme of the Act and particularly after the decision of the Supreme Court in the case of Ram Ran Bijai Singh and Others Vs. Behari Singh alias Bagandha Singh, . Mr. Kundu has further relied upon a decision of a Division Bench of this Court in Ratindra Nath Paul v. Subodh Gopal Bose ILR (1969) Cal. 315. Mr. Roy Chowdhury has, however, contended that the Supreme Court decision is not applicable in the instant case because it relates to Bihar Land Reforms Act, 1950, which contains provisions which are not similar to those appearing in the West Bengal Act.

To appreciate the contentions of the parties and to arrive at a correct interpretation of Section 6(1)(d) of the Act and to get the proper meaning of the words ''khas possession'' appearing in Clause (d) of Sub-section (1) of Section 6 of the Act, let us analyse the provision. We reproduce below the relevant portion of Section 6(1)(d):

Notwithstanding anything contained in Sections 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to Sub-section (2) but subject to the other provisions of that sub-section, be entitled to retain with effect from the date of vesting

(a).......................

(b).......................

(c).......................

(d) agricultural, land in his khas possession, not exceeding twenty-five acres in area, as may be chosen by him:

Provided....

Section 4 of the Act relates to the notification regarding the vesting of estates and the rights of the intermediaries in the State free from all encumbrances. Section 5 speaks about the effect of the notification. We are not concerned with these two sections for our purpose. There is no dispute that the Plaintiffs were the raiyats and the Defendants were their under-raiyats and as such, the Plaintiffs were intermediaries according to the definition of the Act. According to Sub-section (1) of Section 6 just quoted, an intermediary shall be entitled to retain several lands as mentioned in different clauses under the said sub-section with effect from the date of vesting. In the case before us, we are concerned with Clause (d).

Reading the simple and plain language appearing in Sub-section (1) of Section 6, we get that an intermediary shall be entitled to retain certain lands and the nature, character and description of the land which may be retained are mentioned in different clauses in the sub-section. We are, however, concerned with the nature of land mentioned in Clause (d). Clause (d) mentions ''agricultural land in his khas possession'' which means agricultural land lying in physical or khas possession of the intermediary entitled to retain the same. The words ''in his khas possession'' qualify the agricultural land indicating the nature of the land. The submission of Mr. Roy Chowdhury is that the words ''in his khas possession'' qualify the word ''retain'' and not ''agricultural land''. In our view, however, the construction put by Mr. Roy Chowdhury is unacceptable. For that purpose we are to fall back upon the analysis and the grammatical construction of the entire sentence and we are also to understand the meaning, of the word ''to retain'' appearing in Sub-section (1). The word ''retain'' as verb means, according to the Oxford Dictionary, ''to keep possession of, ''continue to have or hold'' amongst other things. The word ''keep'', according to that dictionary, means ''retain possession of, ''maintain esp. in proper or specified condition''. ''Retain'', according to the Chambers Dictionary, means ''to keep up'', ''to continue to hold'' etc. The meaning of the word ''hold'', according to the said dictionary, is ''to have any one''s possession, keeping, or power'', ''to defend successfully'', ''to maintain'', ''to continue'' amongst other meanings. The meaning of the word ''keep'' is ''to continue to follow or hold to'', ''to preserve in a certain state'', ''to maintain'' in the said dictionary. The word ''maintain'' means ''to keep in existence or in any state'', '' to keep up'', ''to carry on'' etc. The word ''retain'', therefore, implies ''continuity of the state or condition of the subject''. The plain and obvious meaning of the language of Sub-section (1) of Section 6 of the Act would, therefore, be that an intermediary shall be entitled to continue to hold the land which is already in his, possession, or in other words, he shall be entitled to maintain and enjoy the agricultural land already in his possession. The question of retention does not arise unless the thing to be retained is already there. The word ''khas possession'' indicate the attribute of the agricultural land mentioned in Clause (d). We cannot say that they can be used as adverb in relation to the word ''to retain'' as suggested by Mr. Roy Chowdhury. That the words ''khas possession'' have been used to qualify agricultural land in Clause (d) will be quite apparent if we look to the other clauses in Sub-section (1). In Clause (c) we get

non-agricultural land in his khas possession including land held under him by any person not being a tenant, by leave or licence.

Here also we get the words ''in his khas possession'' after the words ''non-agricultural land''. Can the words ''in his khas possession'' qualify the words ''to retain'' in Sub-section (1)? It is inconceivable. They can only qualify ''non-agricultural land'', otherwise the words ''including land held under him by any person and not being a tenant by leave or licence'' could not have been added immediately after the words ''khas possession''. The word ''retain'' in Sub-section (1), therefore, clearly indicates the continuity of possession of or keeping of the lands in the same state or condition as described in the different clauses, if there is any mention of any particular description or condition of the land. We cannot, therefore, agree with Mr. Roy Chowdhury to hold that the words ''in khas possession'' in Clause (d) qualify the word ''retain''. In our view, they relate to the agricultural land to qualify the same and to describe its nature.

In order to obviate the difficulty created by the use of the word ''retain'', Mr. Roy Chowdhury next contends that the words ''khas possession'' mean the right to be entitled to get khas possession. His argument is that u/s 48C of the Bengal Tenancy Act his clients terminated the tenancy of the Defendants on the expiry of the last day of Chaitra 1362 B.S. and as such, with effect from 1st of Baisakh 1363 B.S, when the intermediary''s right to the sub-tenancy vested in the State, the Defendants became trespassers. Mr. Roy Chowdhury has argued that when the Defendants became trespassers, the Plaintiffs had the right to recover possession by ousting them from the suit lands and therefore, this right to recover khas possession would be deemed to be the khas possession mentioned in Clause (d) of Sub-section (1) of Section 6 of the Act. This contention again is unacceptable to us. In this connation we should refer to the decision of the Supreme Court in the case of Ram Ram Bijoy Singh (Supra) relied upon by Mr. Kundu. That case, however, came up before the Supreme Court in connexion with the Bihar Land Reforms Act, 1950. There the meaning of the expression ''khas possession as defined in Section 2(k) of the Bihar Land Reforms Act came up for consideration. In that Act there is the definition of the word ''khas possession'' whereas in the Act of the State of West Bengal we are concerned with, no such definition is there. For that purpose we are to take the ordinary meaning of the words ''khas possession'' with reference to the structure and purpose of our Act The expression ''khas possession'' defined in the Bihar Act is as follows:

''Khas possession'' used with reference to the possession of a proprietor ox tenure-holder of any land used for agricultural or horticultural purposes means the possession of such proprietor or tenure-holder by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants by hired labour or with hired stock.

During the argument before the Supreme Court regarding the meaning of ''khas possession'', a question arose whether a right to recover khas possession tantamounts to khas possession. N. Rajagopala Ayyanger J. delivering the judgment on behalf of the Court held as follows:

We consider that this equation of the right to possession with ''khas possession'' is not justified by principle or authority.

There is a sharp distinction between ''khas'' or ''actual'' or ''physical'' possession and a right to recover khas possession. The reliance of Mr. Roy Chowdhury on the decision in the case of Taraprosad Mukherjee v. G.C. Mondal (Supra) already mentioned to show that as the Plaintiffs by terminating the tenancy had the right to recover khas possession, they would be deemed to be in khas possession cannot be acceptable on the construction of the provision of the Act under our consideration and in view of the decision of the Supreme Court in the case of Ram Ram Bijoy Singh (Supra). Before the judgment was delivered in the case of T.P. Mukherjee (Supra) on August 10, 1965, the case of the Supreme Court (2) just referred to was not placed before P.B. Mukharji J.

Moreover, from the reading of Section 48C of the Bengal Tenancy Act it cannot be stated, though contended by Mr. Roy Chowdhury, that with the termination of the tenancy by the landlord under Clause (d) of Section 48Che acquires the right to possess the land by evicting the tenant therefrom. The said section says that an under-raiyat shall be liable to ejectment after several, conditions are fulfilled. There are several grounds on which an under-raiyat is liable to be evicted. One of the grounds of such eviction is that the landlord has got to terminate the tenancy by one year''s notice expiring at the end of the agricultural year when he holds the land otherwise than under a written lease and even in case of such termination of tenancy the landlord shall not get any decree for eviction from the Court unless the landlord proves to the satisfaction of the Court that he requires the land for his homestead or for cultivation by himself or by members of his family or by hired servants or with the aid of partners. According to law, therefore, simple service of a notice of termination of tenancy upon the tenant does not entitle the landlord to have the right to evict the Defendant and to get khas possession of the land concerned. For the purpose of getting the relief as claimed by the Plaintiffs, they were to terminate the tenancy, then start a legal action before the competent Court to get relief for evicting the Defendants u/s 48C of the Bengal Tenancy Act, then further to prove before the Court that they required the land for direct cultivation as mentioned earlier. According to their case, then finally they are to obtain a decree against the Defendants after proving their case before the Court. Unless a landlord gets a decree and the litigation is finally disposed of, he cannot be said, to have acquired the right to recover khas possession and far less can he be said to be in possession of the land. In the instant case, at the date of vesting the Plaintiffs did not start any action before the competent Court for the eviction of the Defendants u/s 48C of the Bengal Tenancy Act. The Plaintiffs having no decree from the competent Court for the eviction of the Defendants cannot be said to have acquired a right to get khas possession of the suit lands on the date of vesting. Mere service of notice of termination of tenancy upon the Defendants was not sufficient to acquire such right. The contention of Mr. Roy Chowdhury in this respect cannot be accepted. In view of this finding as also other decisions of ours indicated earlier, we should hold that the decision of A.C. Gupta J. that the Defendants had ceased to have any right or interest in the suit lands with effect from Baisakh 1, 1363 B.S. that their possession of the same was unlawful and that the Plaintiffs should have been held to be in khas possession of the lands at the date of vesting being entitled to exercise the right of retention, cannot be sustained in law. The decision in the case of Taraprosad Mukherjee (supra) cannot be, accepted and we disagree respectfully with the learned Judge in the view taken there. With reference to the meaning of ''khas possession'' appearing in Section 6 of the Act, reliance has been placed by, the Appellants on the decision of a Division Bench constituted by S.K. Chakraborty and P.K. Banerjee J.J. in the case of Ratindra Nath Paul v. Subodh Gopal Bose (Supra) already mentioned. In that case two separate judgments were delivered and the interpretation of the words ''khas possession'' appearing in the case of Taraprosad Mukherjee (1) was not accepted and for that purpose there was a reference to the case of Ram Ram Bijoy Singh (2) decided by the Supreme Court. The decision of that case, however, supports the. Appellants here regarding the argument that the Plaintiffs had no right to sue for recovery of possession.

In the present case, after the date of vesting the Plaintiffs started an action for eviction of the Defendants claiming right u/s 48Cof the Bengal Tenancy Act. Before the starting of the litigation, all the rights of the Plaintiffs in respect of the under-tenancy of the Defendants had already vested in the State. They did not get any khas possession by evicting the Defendants from the suit land on the basis of any decree or order of the Court declaring the rights to have recovery of khas possession of the suit lands by evicting the Defendants from the same. In these circumstances, when after the date of vesting the estates and the rights of the Plaintiffs relating to the under-tenancy were no longer with the Plaintiffs, they could not have dealt with the estate for removing the Defendant-tenants in possession from the suit land by starting the suit. Such action by the Plaintiffs in the form of suit or litigation would not be maintainable in law, as they have no right to deal with the possession of the lands in occupation of the Defendants who were admittedly the under-tenants. In this connexion again we may refer to B; the decision of the Supreme Court in the case of Haji Sk. Subhan Vs. Madhorao, . That was a case under the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals Alienated) Act, 1950, where the effect of the vesting of an estate in the State has been dealt with relating to the provisions of the said Act. It was held by the Supreme Court that no person could acquire any right over the vested land under a decree passed in his favour Subsequent to the vesting of the estate on the notified date and that, therefore, the Respondent did not acquire the right to possess the land under the decree in his favour. In that case the Respondent after purchase of the land at an auction sale held by the Revenue Officer obtained formal possession. A suit was filed by the Respondent for recovery of possession of certain lands claiming his proprietary right to recover possession. The suit was decreed and it was upheld by the Nagpur High Court which held that the Respondent was entitled to the fields in suit which were originally khud kusht fields purchased by the Respondent. Between the closing of the arguments in the appeal in the High Court and the date of delivery of judgment, the Madhya Pradesh Abolition of Proprietary Rights Act came into force, but this fact was not brought to the notice of the High Court and as such, the High Court had no opportunity to consider the effect of the Act. An execution case was started and in that connexion the matter came up before the Supreme Court and the decision went against the purchaser as already mentioned. A relevant portion of the judgment is quoted below:

...any rights which accrue to the proprietor under a decree by virtue of his proprietary right will not, under the scheme of the Act, prevail over the statutory consequences following the vesting of the proprietary rights in the State and will be lost to the proprietor. One such right is the right of the proprietor under a decree to obtain possession over certain land. Such a decree for recovery of possession is the result of the recognition of the proprietor''s right of possession as proprietor over that land as against the claim of the judgment-debtor to retain possession of that land. The proprietary right vests in the State and as a consequence of it the proprietor''s right under the decree to obtain possession also vests in the State even though the State gets right to the possession of the land under other provisions of the Act as well.

The scheme of the Act of West Bengal under consideration is not Substantially different and after the vesting of the estates and rights of the intermediary in the State, such intermediary cannot obtain a decree after such vesting to recover possession by ousting the tenants therefrom. In the present case before us, the Plaintiffs started legal action even after the date of vesting to get recovery of possession by ousting the Defendants who were his under tenants. The Plaintiffs, therefore, had no right to obtain such decree for recovery of possession and therefore, the action started by the Plaintiffs was not maintainable. In our view, the learned Munsif of the trial Court rightly held that the Plaintiffs had no right to evict the Defendants from the suit lands and that the suit would fail. In fact, the suit was rightly dismissed according to law. Similarly, the learned Subordinate Judge dismissing the First Appeal rightly held that the Plaintiff''s right of suit had already been lost. The judgment and the decree in the Second Appeal challenged be fore us are not sustainable iii law in view of our discussion above and therefore, liable to be set aside.

In the result, the appeal is allowed on contest. The judgment and the decree passed in the Second Appeal are hereby set aside and the judgment and the decree of the first appellate Court supporting those of the trial Court are hereby affirmed. In the facts and circumstances, however, the parties are to bear their own costs throughout in all the Courts.

Janah, J.

I agree.