Lalji Agarwalla Jain vs Jhingu Goala

P.N. Mookerjee, J.—A short point of law arises in this appeal but the point is of some importance and not altogether free from difficulty.

On February 21, 1947, the Appellant Lalji Agarwalla obtained a decree for ejectment, arrears of rent and damages against_the Respondent Jhingu Goala in T. S. No. 384 of 1945 of the Court of the 2nd Munsif at Alipore. The property in dispute was non-agricultural land and the Respondent was a non-agricultural tenant under the then continuing Bengal Non-Agricultural Act, 1940. In the suit the Appellant''s claim for ejectment was resisted inter alia under the above Act. The Court, however, did not stay the suit but on February 21, 1947, it made a conditional decree for ejectment, etc., in these terms:

It is ordered and decreed that the suit be decreed with costs on contest against the Defendant. The Plaintiff do get arrears of rent claimed to the extent of Rs. 315 (Rupees three hundred and fifteen only) and Rs. 171 (Rupees one hundred and seventy-one only) as damages calculated at the rate of Rs. 9 per month from Sravan, 1352 B.S. to Magh, 1353 B.S. and the Plaintiff is entitled to get damage at the same rate till the date of possession of the suit land. The Defendant must deposit the decretal dues within one month from the date of delivery of judgment; in default, the Plaintiff will get khas possession of the land in suit by evicting the Defendant therefrom and that the sum of Rs. 96-8-8 pies (Rupees ninety-six annas eight and pies eight) only be paid by the Defendant to the Plaintiff on account of the costs of this suit.

This decree was eventually put into execution in T. Ex. Case No. 108 of 1948 which was started on July 24, 1948. In the meantime, it appears, the judgment-debtor (who is the Respondent before us) had deposited a sum of Rs. 582-8 on March 21, 1947, that is, within one month as stated in the decree in purported compliance therewith. A question, accordingly, arose whether, in view of the express terms of the decree, the decree for ejectment retained its executability after the above deposit. The decree-holder contended at that stage that the amount, deposited as aforesaid, was insufficient and the learned Munsif, by his order dated September 9, 1949, eventually found that, although the amount was sufficient on the figures, mentioned in the decree, the decretal costs had been calculated wrongly therein at Rs. 96-8-0, whereas it ought to have been Rs. 98-11-6 pies. As this was obviously a mistake of the court''s office, the learned Munsif allowed the judgment-debtor time till the 20th to deposit the small deficit of Rs. 2-3-6 pies and, that deposit having been duly made, he, by his order dated October 29, 1949, accepted the judgment-debtor''s deposit as quite in compliance with the terms of the decree and struck off the execution case upon the view that, by reason of the deposit, the decree for ejectment (and obviously also the other parts of the decree) could not be executed. The decree-holder appealed from this order and the learned appellate court, by its judgment, dated September 9, 1950, construed the decree as one passed under the proviso to Section 3 of the Bengal Non-Agricultural Tenancy Act, 1940, referred to above, and upon that view (which seems to us to be perfectly correct) he held that, the said Act being no longer in force, the stay under the proviso had spent itself and, accordingly, the execution would proceed according to law irrespective of the validity or sufficiency of the judgment-debtor''s deposit. In the result, he allowed the appeal, set aside the learned Munsif''s order, dated September 9, 1949, which meant also the setting aside of the consequential order, dated October 29, 1949. striking off the execution case.

In the above context, the execution case was restored to file on September 26, 1950, and writ of possession was ordered to be issued, fixing November 20. 1950, for return and order. In the meantime however, on October 7, 1950, the judgment-debtor filed his objection u/s 47 of the Code of Civil Procedure, giving rise to Misc. Case No. 414 of 1950. and, upon his prayer, the execution case was stayed till the disposal of the above Misc. Case.

In the Misc. case, the judgment-debtor''s principal objection was that he was not liable to ejectment in view of the provisions of the new West Bengal Non-Agricultural Tenancy Act, 1949, which had meanwhile come into force on and from about the middle of May, 1949. Protection was claimed u/s 7, or, in the alternative, u/s 9 of the Act and also u/s 56. In view of the express terms of Section 88 there was no question that this new Act would apply to the case and the learned Munsif, having held that the applicant judgment-debtor was in possession of the disputed land as a non-agricultural tenant for more than twelve years, gave him protection u/s 7. He further held that the judgment-debtor was also entitled to protection u/s 56 of the Act, as the decree for ejectment in the present case was, in his opinion, on account of arrears of rent as required by that section.

On appeal, the learned Additional District Judge held against the judgment-debtor on the question of protection u/s 7 as he was unable to agree with the learned Munsif that the requisite possession for 12 years had been proved in the case, but he held that the applicant judgment-debtor was nevertheless entitled to protection in view of the provisions of Section 9 of the Act as the necessary six months'' notice (vide Sub-section (1)(b)(iii)) had not ''admittedly been given to him. He also affirmed the learned Munsif''s view that Section 56 was also a sufficient answer to the decree-holder''s claim for, ejectment in the present case. From this appellate decision, the decree-holder has preferred this appeal to this Court.

At the hearing, a preliminary objection was raised to the maintainability to this appeal on the ground that, the Appellant''s estate including the disputed land having vested in the State under the Estates Acquisition Act, 1953, the Appellant had no locus standi to maintain or continue this appeal. We do not think, however, that this objection is sound. So far as the disputed land is concerned, the Appellant''s claim for compensation will greatly vary in amount according as it is tenanted or khas. If the present appeal succeeds, the Appellant will be entitled to khas possession of the land though that possession will ultimately enure to the State''s benefit and his claim for compensation will be determined on that footing. If it fails, the land will, remain the tenant Respondent''s land under the Appellant and will be tenanted land so far as the Appellant is concerned and his compensation will be determined accordingly. In this view, we over-rule the preliminary objection and proceed to decide the appeal on the merits.

In view of the appellate court''s finding on the question of the length of the tenant judgment-debtor''s possession, which must be accepted in this appeal, no question of protection arises u/s 7 of the Act. As to Section 9 of the Act, it is unnecessary to refer to its provisions for the tenant''s protection as, in our opinion, the landlord''s claim for ejectment must fail and this appeal must be dismissed in view of the provisions of Section 56 of the Act, as applying to this case. We do not, therefore, deem it necessary to consider in any great detail the decision of this Court in Astaram Bagdi and Ors. v. Sitanath Mandal (1956) 60 C.W.N. 109, relied upon by the Appellant''s learned Advocate on this part of the case, although, in the course of this judgment,-or, in its concluding part, to be precise,-we shall be making some incidental observations in regard thereto.

So far as Section 56 is concerned, the position in the present case stands thus:

The decree for ejectment has already been construed between the parties as one passed u/s 3 proviso of the old Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, which means that it was taken to be-and must, so far as the present parties are concerned, be regarded as a decree for ejectment on account of or on the ground of nonpayment of rent. That decision is binding between the parties and it seems to be quite correct also as, under the law, as it then stood (vide Section 3 including the proviso), the suit for ejectment could not have been proceeded with except where the decree for ejectment was to be made on account of or on the ground of nonpayment of rent and where, accordingly, the proviso applied and permitted only conditional decrees like the one, passed in the present case. Right or wrong, that view of the suit is binding between the parties and the Appellant is not, in our opinion, entitled to resile from that position when he is seeking to execute the decree, obtained on that footing. It is beyond dispute also that a suit for ejectment on account on non-payment of rent under the proviso to the old Section 3 would be and would remain a suit for ejectment on account of, that is, on the ground of, non-payment of rent under the new Act also for inter alia purposes of Section 56 thereof. In the above view, we hold that the suit for ejectment in the instant case would have to be taken as one on account of non-payment of rent as between the present parties for purposes of Section 56 of the West Bengal Non-Agricultural Tenancy Act, 1949, and, once that is done, there is no escape from the position that this appeal must fail and the Appellant''s execution case must stand dismissed, as otherwise we would be permitting ejectment for arrears of rent in violation of Section 56 of the Act.

In the above connection our attention was drawn to the Bench decision of this Court (per Chakravartti, C.J. and Lahiri, J.) in Lalji Agarwalla Jain v. Mahabir Kairi L.P.A. No. 3 of 1953 (unreported) and it was argued on behalf of the Appellant that in taking the above view, we would be holding, contrary to the said decision which we are not entitled to do under the Rules of this Court and we were asked to refer the matter to a Full Bench. We do not think the argument can be accepted. The present case is distinguishable from the case cited by reason of the previous order of the lower appellate court, dated September 9, 1950, on the earlier occasion which is on record and is part of it and wherein it was held that the decree, now under execution, was passed under the proviso to Section 3 of the Non-Agricultural Tenancy Act of 1940. There was no such material before the Letters Patent Bench for holding that the parties were bound to proceed, as in this case, upon the footing that the decree for ejectment was on account of nonpayment of rent. Their Lordships there had to rely only on the ejectment decree which, according to them, was not sufficient to show that it was made in a suit for ejectment on account of nonpayment of rent. That distinction renders unnecessary any reference to the Full Bench in the present case although, in the absence of it, such reference would have been necessary as, in our view, with all respect to the learned Judges who decided the Letters Patent Appeal, the decree in that case also should have been construed as having been made in a suit for ejectment on account of arrears of rent as held by Renupada Mukherjee, J. whose judgment in S.M.A. 78 of 1951 was reversed in the Letters Patent Appeal. In view of the mandatory provision for stay of the ejectment suit (vide Section 3 of the 1940 Act) if it was- treated as one on other grounds, the suit could not have proceeded to a hearing and the decision of the court, passing a conditional decree in the form, in which it was passed in that case, as it appears from the recital portion of the Letters Patent judgment, makes it abundantly clear that the court rightly or wrongly treated the suit as one for ejectment on account of arrears or non-payment of rent and that was binding between the parties. Indeed, the decree, passed in that case, does not seem to be explicable on any other hypothesis-and we say this with the utmost respect to the learned Judges who decided the Letters Patent Appeal and, in particular, to the learned Chief Justice who delivered the judgment of the Court on that occasion- notwithstanding observations to the contrary contained in that judgment. It is important also to note that in the decision part of that judgment (which apparently contradicted the earlier recital portion) the time provision in the decree was stated to be one merely for the payment of the arrear rent, that is, not necessarily for staying ejectment or avoiding immediate ejectment as under the proviso to Section 3. We do not know whether this incomplete statement of the relevant part of the decree or the above manner of referring to the time provision had anything to-do with the observations of the learned Chief Justice that the Court was not necessarily acting under the proviso to Section 3 as, in our opinion,-and again we say this with the utmost respect to the learned Judges who decided the Letters Patent Appeal,-if the decree was in the form, as set out in the earlier recital portion of the judgment, it could not have been passed except under that proviso. It is unnecessary to continue this discussion as, for reasons, already mentioned, the case cited is distinguishable from the present. We, accordingly, hold that the decision of the Letters Patent Bench does not preclude us from giving protection to the tenant judgment-debtor in the present case-under Section 56 of the Act and the Appellant''s argument to the contrary must fail.

Before concluding we would like to make a few observations in regard to the decision in Astaram Bagdi''s case (Supra). In the first place, we deem it necessary to point out that, as we have based our present decision on Section 56 alone, that case which was concerned solely with Section 9 has strictly no relevance here. The reasons given by their Lordships (Das Gupta and Bachawat, JJ.) in the case cited for construing the words "liable to ejectment" in Section 9 as limited to suits do not, in our opinion, apply to Section 56. The present case is, therefore, clearly distinguishable. In the second place, it seems to us that Astaram Bagdi''s case (Supra) did not proceed upon a correct view of the decision, reported in Panchumani Dassi v. Bhuban Mohan Mukherjee (1954) 59 C.W.N. 243 and certain observations on Section 9 were quoted from this decision and relied upon in Astaram Bagdi''s case (Supra) entirely separated from the context, and no reference was made to the effect of Section 88 which, as held in Panchumani''s case, changed the entire outlook Indeed, if we may point out with respect, the first is not altogether free from difficulty and the question of the true scope of Section 9 may have to be considered over again and the validity of the grounds, given in Astaram Bagdi''s case in support of its decision, may have to be re-examined. We ought to add, however, that the actual decision in that case ( Astaram Bagdi and Others Vs. Sitanath Mandal, ) may well be supported on other grounds. Nothing more need be said on the present occasion.

In the above view, we dismiss this appeal though, in the circumstances, we would not make any order for costs in this Court.

P.K. Sarkar, J.

I agree.