Jnanendra Narayan Sing vs Momena Khatun

P.N. Mookehjee, J.—These are the Plaintiffs'' appeals arising out of two suits for declaration that an award of the Murarai District School Board u/s 37A of the Bengal Agricultural Debtors Act is ultra vires, without jurisdiction and a nullity and is as such not binding upon the Plaintiffs.

The Plaintiffs were the landlords of the disputed holdings and in execution of rent decrees they purchased the same sometime in 1935. Thereafter they took delivery of possession through Court and were in actual possession of the lands of the holdings when the present Respondent Momena Khatoon (who was the sole Defendant in the trial Court) applied to the District School Board at Murarai u/s 37A of the Bengal Agricultural Debtors Act for reliefs under that section. Eventually, an award was made in her favour and hence the present suit.

The main question raised by the Plaintiffs in their plaint was that Momena Khatoon, the applicant before the Board, had no interest in the disputed holdings and was a mere trespasser in respect of the same and as such the Board had no jurisdiction to pass the award in her favour. The defence was that Momena Khatoon had purchased a portion of the disputed holdings and was as such entitled to maintain the application u/s 37A before the Murarai Board. In support of the defence no kabala or document of title was filed but the Defendant''s husband was examined as a witness on her behalf and in his evidence he stated that Momena''s purchase was made probably in 1934 and it was for Rs. 200 but the document of purchase was not registered. The learned Munsif was of the opinion that the Civil Court had jurisdiction in the circumstances of this case to enquire whether the Board had acted within the four corners of its authority u/s 37A of the Bengal Agricultural Debtors Act and as the learned Munsif was of the opinion that the Defendant had no interest or title in the disputed holdings but was a mere trespasser in respect thereof, he expressed the view that she had no locus standi to make the application u/s 37A of the Bengal Agricultural Debtors Act and the Board also had no jurisdiction to entertain the said application or to make an award in her favour on the basis of the same. In the above view of the matter, the learned Munsif gave the Plaintiffs the declarations sought for in the plaints of the present suits. Against this decision in either suit the Defendant appealed to the learned District Judge, Birbhum. The appeals were finally heard by the learned Subordinate Judge who was of the opinion that the Board having passed an award u/s 37A of the Bengal Agricultural Debtors Act the Civil Court had no jurisdiction to make the declarations sought for by the Plaintiffs. In the opinion of the learned Subordinate Judge Section 37A of the Bengal Agricultural Debtors Act conferred exclusive jurisdiction on the Board with regard to the conditions necessary for entertaining an application under that section and for making an award under it and he felt convinced that that was sufficient to deprive the Civil Court of all jurisdiction over or in respect of the disputed award. The learned Subordinate Judge, accordingly, reversed the decision of the learned Munsif and dismissed the Plaintiffs'' suits.

The short point that arises for consideration in these two appeals is whether the Board''s jurisdiction u/s 37A is so exclusive and absolute as to deprive the Civil Court of all powers of enquiry into the validity of the disputed award. The learned Subordinate Judge has answered this question in the affirmative. In doing so, he has drawn an analogy between this section and Section 20 of the Act and his conclusion appears to have been greatly influenced by the view that under this latter section the Board''s jurisdiction in regard to matters covered thereby is exclusive and cannot be questioned before the Civil Court. In my opinion, however, the analogy has been carried too far and the decision of the learned Subordinate Judge cannot be supported in the facts and circumstances of the present case.

It may be that Section 37A of the Bengal Agricultural Debtors Act by Sub-section (2) thereof has conferred exclusive jurisdiction upon the Board to determine "whether the application fulfils the conditions "specified in Sub-section (1) and whether it can be entertained". But the structure of the section and the language used in the relevant Sub-section (2) make it quite clear that the reference therein does not extend beyond Sub-section (1), Clauses (a), (b) and (c), and Sub-section (3). The quotation does not comprehend the earlier part of Sub-section (1) and it has not, in my opinion, conferred exclusive jurisdiction on the Board to decide whether the applicant before it is a person whose immovable property has been sold-and this only is relevant in the present case-or the heirs, executor or administrator of such a person to whom alone, and to none else, belongs the statutory right of restoration. That being so, it is open to the Civil Court to examine whether the applicant is such a person and is as such entitled to maintain the application u/s 37A of the Bengal Agricultural Debtors Act and if the Civil Court finds against the applicant on the question it is open to it to hold and declare that the Board''s award is a nullity and without jurisdiction. This aspect of the matter falls within the first of the two categories mentioned by Lord Esher, M.R., in the passage, quoted from his judgment [vide, The Queen v. The Commissioners for Special Purposes of the income tax (1888) 21 Q.B.D. 313, 319] by their Lordships of the Supreme Court in Rai Brij Raj Krishna and Another Vs. S.K. Shaw and Brothers, and in this respect, therefore, the analogy of Section 20 of the Act is plainly inappropriate.

Although in the preceding paragraph I have assumed for purposes of this case that u/s 37A(2) of the Bengal Agricultural Debtors Act the Board had exclusive jurisdiction to determine "whether the application fulfils the conditions specified "in Sub-section (1) and whether it can be entertained", that question is not altogether free from difficulty. The statute uses the words, "the Board shall first determine whether the application fulfils the "conditions specified under Sub-section (1) and whether it can be "entertained" which may only mean that before the Board proceeds to take action on the application it has to determine the basic question "whether the application fulfils the conditions "specified in Sub-section (1) and whether it can be entertained". The statute no doubt casts a duty upon the Board to come to its initial determination before further action can be taken upon the application but it is still open to argument whether it confers an exclusive jurisdiction on the Board in such matters, so as to preclude the Civil Court from re-examining the question if any occasion arises therefor. It is at least possible to argue that the Sub-section simply prescribes the stage at which the basic question, to which reference has been made, has to be determined and merely lays down the sequence or order for the determination of that question vis a vis the other issues, involved in the case. Whether such an argument would be available in the face of the authorities, cited above, is a matter on which I need express no opinion in the present case and whether in this respect the relevant statutory provision would belong more properly to the second of Lord Esher''s classification is left for closer examination on a future occasion.

In the above view of the matter, I hold that the learned Subordinate Judge was not right in throwing out the Plaintiffs'' suits on the preliminary ground that the Civil Court had no jurisdiction to examine whether the Board''s award u/s 37A was without jurisdiction. The decision of the lower appellate Court must, therefore, be set aside and, as the learned Judge has not considered and come to any finding whether the Defendant was "a person whose immovable property has been sold" within the meaning of the relevant opening words of Section 37A(1), the matter must go back to the lower appellate Court for a decision of that question on the materials now on record and on such further evidence as the parties might choose to adduce in that behalf. If the Court finds that the Defendant fulfils that description, the Plaintiffs'' suits will be dismissed. If, however, the Court comes to a contrary finding on that point, the Plaintiffs'' suit will be decreed and the decision of the learned Munsif will be affirmed.

These appeals are thus allowed in part, the judgment and the decrees of the learned Subordinate Judge are set aside and the cases are sent back to the lower appellate Court for a determination of the question, to which reference has been made above, and final decision of the two suits in the light thereof in accordance with law and the directions, given above. The costs of these appeals will abide the final result.