Manmatha Nath Dhara vs Panchanan Jana

Guha Ray, J.—This second appeal by the Plaintiff arises out of a suit instituted by him under Order XXI, Rule 103 of the CPC for establishment of his right to the present possession of the disputed land based upon an order of pre-emption u/s 26F of the Bengal Tenancy Act and for an order of injunction to restrain the Defendants from interference with his possession.

The disputed land forms part of an occupancy holding described in sch. Kha to the plaint. Kedar, father of the Defendants Nos. 1 to 4, admittedly owned this holding''. He sold to the Plaintiff by Ex. 1 dated June 2, 1935, a portion of this holding, so that the Plaintiff became a co-sharer in respect of the holding with Kedar. After Kedar''s death his sons namely Defendants Nos. 1 to 4 sold to pro forma Defendant No. 5 the remaining portion of the holding for Rs. 250 on November 4, 1943. The Plaintiff, thereupon, filed on January 27, 1945, an application for pre-emption in respect of the portion of the holding sold by Defendants Nos. 1 to 4 to pro forma Defendant No. 5. This application was allowed ex parte on April 23, 1945, and the Plaintiff was given delivery of possession through court on June 27, 1945. Defendants Nos. 1 to 4 then brought a Misc. case No. 374 of 1945 under Order XXI, Rule 100 of the CPC on August 25, 1945. This was allowed ex parte and the Defendants were restored to possession. Then, on September 5, 1945, the suit out of which this appeal arises was instituted under Order XXI, Rule 103 of the Code of Civil Procedure. The Plaintiff in this suit challenges the ex parte order obtained by Defendants Nos. 1 to 4 in Misc. case No. 374 of 1945 as fraudulent and his further case is that Ex. A, a deed of reconveyance executed by pro forma Defendant No. 5 on March 19, 1945, during the pendency of the pre-emption proceedings is fraudulent. In this deed of reconveyance there is a recital that at the time when the conveyance in favour of pro forma Defendant No. 5 was executed by Defendants Nos. 1 to 4, there was an oral agreement regarding this reconveyance and on the basis of that in the Misc. case instituted by Defendants Nos. 1 to 4, they also made the case that there was such an oral agreement for such a reconveyance.

The defence of Defendants Nos. 1 to 4, firstly, was that Ex. A was binding on the Plaintiff and secondly, that under the Bengal Alienation of Agricultural Land (Temporary Provisions) Act, 1944 (Ben. Act V of 1944), the Collector having passed an order directing the restoration of the land to the vendors, the civil court had no jurisdiction to go into the matter and to interfere with that order of the Collector. The trial court decreed the suit on the findings, first, that the Plaintiff was entitled to present possession of the property on the strength of the order of preemption he had obtained, secondly, that Ex. A was not a bona fide document for consideration and thirdly, that the story of an oral agreement at the time of the conveyance in favour of pro forma Defendant No. 5 in pirsuance of which Ex. A is alleged to have been brought into existence is not true.

As regards the contention during the hearing that the Collector''s order under Act V of 1944 ousted the jurisdiction of the civil court, his finding was that the Collector had no jurisdiction, becatise, in the face of it, the sale deed itself discloses that it was burdened with a contract for reconveyance and in pursuance thereof a deed of reconveyance had already taken place.

On appeal, the learned appellate court without going into the evidence on the point recorded a rending that there was no ground for disbelieving the defence story of the agreement for reconveyance and further that the civil court had no jurisdiction to deal with the matter because of the Collector''s order under Act V of 1944. In this view he allowed the appeal, set aside the judgment and the decree of the learned trial court and dismissed the suit.

On appeal to the High court the judgment and decree of the lower appellate court were set aside and the appeal remitted to that court for rehearing. On rehearing the learned appellate court found, firstly, that the Plaintiff was entitled to present possession on the basis of the pre-emption order in his favour, secondly, that there was no oral agreement between Defendants Nos. 1 to 4 and pre forma Defendant No. 5 at the time of the conveyance by the former in favour of the latter for reconvening the property, and thirdly, that Section 10 of Act V of 1944 was a bar to the maintainability of the suit. In this view the appeal was allowed and the suit dismissed.

Thus the only question which was decided against the present Appellant and on the decision of which the whole suit stood dismissed was that the civil court had no jurisdiction in the matter in view of the order of the Collector dated June 6, 1946'', directing the restoration of the property to the vendors, that is Defendants Nos. 1 to 4. This order was made on an application, a copy of which is Ex. B. This application is dated December 28, 1945 and it appears to have been put up before the sub-divisional officer on that very date because the sub-divisional officer appears to have noted on the application itself ''V.O.S.'' (that is ''vide order sheet'') and signed it and this endorsement is dated December 28, 1945. Evidently then, the application must have been made on December 28, 1945. The material portion of Section 4(1) of the Bengal Alienation of Agricultural Land (Temporary Provisions) Act, 1944, is in these terms:

If on or after the 1st January 1943 and before January 1, 1944, aproprietor tenure-holder, raiyat or under raiyat has transferred any agricultural land by sale for any consideration the amount or value of which does not exceed two-hundred and fifty rupees, and if,

(a) he applied in the prescribed manner to the Collector at any time before-the 25th day of December, 1945, for the restoration of such land to him; and

(b) he satisfied the Collector that he could not have maintained himself or his family except by making such alienation of such land, the Collector shall after giving the transferee and if such land is in the possession of any person other than the transferee, such other person also an opportunity of being heard, make an ordered.

It is thus clear from the section itself that the two essential prerequisites to a valid order by the Collector are firstly that a proprietor tenure-holder, raiyat or vnder-raiyat has transferred any agricultural land by sale for Rs. 250 or less between January 1, 1943 and January 1, 1944 and secondly, that the vendor applies in the prescribed manner to the Collector at any time before December 25, 1945, for the restoration of such land to him. In this case there is no dispute that the first of these two conditions has been satisfied. The only question is whether the second condition also was satisfied, the second condition being that the application must be filed at any time before December 25, 1945. Mr. Jana on behalf of the Respondents contends that this phrase includes December 25, 1945 also and that being a holiday for the collectorate, u/s 4 of the Indian Limitation Act the application could be filed on the next open date, that is on December 28, 1945, and it was actually filed on that date. There is no doubt that 25th was a holiday and that if Section 4(7) included December 25, 1945, as the last date for filing the application, the application would undoubtedly be within time and the Collector''s order would be perfectly valid. But then the words "before the 25th day of December 1945", clearly do not mean the same thing as the words "upto the 25th day of "December, 1945." The latter form of words would undoubtedly include the 25th.

Mr. Jana next contends that the addition of the phrase "at "any time" means that the 25th also must have been included and it could not have been excluded. I do not see, how the addition of the phrase "at any time" can lead to the inference that December 25, 1945, was also included. The phrase "at any "time" merely refers to the hour of filing rather than the date of filing and means that it was open to a vendor to file the application at any time even outside the prescribed hours in the collectorate. If the phrase refers to the date, it would be in any event, redundant. In my opinion, therefore, it does not justify the construction which Mr. Jana wants me to put on it. Then Mr. Jana very fairly pointed out Section 4 of the Bengal Alienation of Agricultural Land (Temporary Provisions) Ordinance, 1943 (Bengal Ordinance No. IV of 1943) which was replaced by Act V of 1944. It is in these terms:

If on or after the 1st January, 1943 and before the 1st January, 1944 a raiyat or under raiyat has transferred any holding by sale for any consideration the amount or value of which does not exceed two hundred and fifty rupees, and if, (a) he applies in the prescribed manner to the Collector within two years from the date on which this Ordinance comes into force for the restoration of such holding to his ownership and possession....

The Ordinance was published in the Calcutta Gazette on December 24, 1943 and, evidently, it came into force from that very date, so that two years from that date expired on the 24th. Under the Ordinance, therefore, the application was to be filed within two years from December 24, 1943, and these two years expired on December 24, 1945. When the corresponding section of the Act uses the expression "at any time before the 25th day of "December 1945", it becomes at once clear that the Ordinance having expired on December 24, 1945, the last date for making the application under the Act was December 24, 1945 and that is precisely why the words used were "before the 25th day of "December, 1945." There is thus no room for doubt that an application in order to be a valid application had to be filed before December 25, 1945, the application itself was not valid and it was not open to the Collector to make an order on an application filed beyond the prescribed time. The order, therefore, of the Collector made u/s 4 of the Bengal Alienation of Agricultural Land (Temporary Provisions) Act, 1944, was clearly without jurisdiction and as such the order made without jurisdiction is a nullity and it is always open to a court of law to ignore such an order. The finding, therefore, of the learned lower appellate court that this order of the Collector u/s 10 of the Bengal Alienation of Agricultural Land (Temporary Provisions) Act, 1944, was a bar to the maintainability of the suit cannot be supported and must be set aside. He dismissed the Plaintiff''s suit only on this ground. The decree, therefore, passed by the learned trial court has to be restored.

The result then is that the judgment and decree of the learned lower appellate court dismissing the suit are set aside and those of the trial court restored.

The Respondents will pay the Appellant the costs of this Court and also of the lower appellate court.

Leave to appeal under Clause 15 of the Letters Patent has been prayed for and is refused.