Md. Idris vs Smt. Lakhpati

P.N. Mookerjee, J.—This is an appeal under Clause 15 of the Letters Patent from the judgment of our learned brother R.N. Dutto J.

A short question arises in this appeal, namely, whether ''intermediary'' under the West Bengal Estates Acquisition Act, 1953, as defined u/s 2, Clause (i) includes a non-agricultural tenant above the last non-agricultural tenant in occupation or possession of the disputed land. The suit, out of which this appeal arises, was a suit for ejectment or eviction of the Defendant Respondent from the disputed land, the Plaintiff Appellant, claiming to have terminated the Defendant Respondent''s non-agricultural tenancy by appropriate notice u/s 9, Sub-section (1), Clause (iii) to entitle him'' to recover possession of the disputed land from the Defendant Respondent under the said section.

The learned trial Judge decreed the Plaintiff''s suit but, on appeal, the said decision was reversed by the learned Subordinate Judge upon the view that, although the Plaintiff could have otherwise succeeded, his suit was bound to fail as he was an intermediary under the West Bengal Estates Acquisition Act, 1953, whose interest had vested in the State under the said Act. On second appeal to this Court by the Plaintiff Appellant, our learned brother R.N. Dutt J. accepted the view of the learned Subordinate Judge and dismissed the Plaintiff''s appeal. Hence, this appeal under Clause 15 of the Letters Patent on leave granted by our learned brother.

Admittedly, on the findings made by the three Courts below, the Plaintiff and the Defendant are both non-agricultural tenants in respect of the disputed land, the Plaintiff being the non-agricultural tenant of the superior degree and in that capacity the landlord of the Defendant. According to our learned brother R.N. Dutt J. and the learned Subordinate Judge, a non-agricultural tenant, who is not the actual occupant of the land or, in other words, a non-agricultural tenant in occupation of the disputed land, would come within the definition of ''intermediary'', as given in Section 2, Clause (i) of the West Bengal Estates Acquisition Act, and, upon that view, they held that the Plaintiff would be an intermediary with the consequence that his interest must be held to have vested in the State, thus depriving him of his right and locus standi to institute the present suit. In this case, no other question would arise as the Defendant''s tenancy was terminated, admittedly, after the date of vesting, as given in the above Act. We have, therefore, to consider whether the view of the Court and of the learned Subordinate Judge on the meaning of the word ''intermediary'' under the above Act, as stated hereinbefore, was correct or whether the contrary view of the learned Munsif is to be accepted.

If the matter had been res Integra, a good deal possibly might have been urged in support of the view, taken by our learned brother R.N. Dutt J. and the learned Subordinate Judge in view of the words ''any other intermediary apart from a proprietor, tenure-holder, under-tenure-holder above a non-agricultural tenant'', as contained in the relevant definition in Section 2(i) of the above Act. The point, however, is no longer open in view of the decision of the Supreme Court in Shibsankar Nandy Vs. Prabartak Sangha and Others, where para. 9 clinches the issue in favour of the Appellant. Their Lordships of the Supreme Court in that paragraph expressed the view that a person, who is a non agricultural tenant, irrespective of the degree of such tenancy, would be excluded from the definition of intermediary in Section 2(i) noted above. In view of the said decision, we are bound to hold that the Plaintiff would not be an intermediary under the above Act and his interest cannot be said to have vested in the State.

Upon-that view, this appeal is allowed, the judgment and decree of this Court and of the learned Subordinate Judge are set aside and those of the learned Munsif are restored and the Plaintiff''s suit is decreed.

There will be no order for costs either in this Court or in any of the Courts below.

Amiya K. Mookerji J.

I agree.