Md. Ismail Miah, Mutwalli vs Tom Munda and Others

The appellant brought three suits, which were heard analogously for recovery of khas possession of certain lands and huts situated thereon and for mesne profits on the averment that the defendants were "engaged as labourer adhiars to cultivate the disputed lands on condition that they would cultivate the lands with the plaintiff''s cattle, plough and seeds according to plaintiff''s direction and instructions and out, gather and thrush the same in plaintiff''s kholan (threshing yard) and take a half share of the produce....", that though the defendants cultivated them during the season Baisakh to Falgoon, 1357, B.S., in Falgoon, 1357, they refused to cultivate the lands with the plaintiff''s seeds and under the plaintiff''s instructions and threatened to cultivate the lands at their sweet will. Thereafter the plaintiff dismissed the defendants from his service as adhiars and that consequently the defendants had no right either to plough the arable lands or to live on the lands on which they had been living as adhiars. The defence was that the suit was not maintainable in the Civil Courts as in substance these were suits to terminate the cultivation of the lands by bargadars.

This defence was accepted by the trial Court which dismissed the suits. On appeal, the learned District Judge has held that the Civil Courts had jurisdiction to entertain the suits but the Civil Court has to decide the cases according to the provisions of the Act (West Bengal Bargadars Act of 1950), and consequently the suits not having been brought on any of the grounds set out in clauses (a) to (d) of section 5 of the West Bengal Bargadars Act of 1950, the suits were bound to fail. In that view, he dismissed the appeals.

The first question that arises for decision in these appeals is whether the Civil Courts had jurisdiction to entertain the suits. In deciding this question it is necessary to bear in mind the provisions of section 5, 7, 9 and 18 of the West Bengal Bargadars Act of 1950. Section 5(1) provides that the owner of any land cultivated by a bargadar shall not be entitled to terminate the cultivation of such land except on one or more of the four grounds as mentioned therein. There is a proviso that the cultivation of such land by a bargadar shall not be terminated on any of these grounds except by order of the Board. Section 7 provides that disputes as regards termination of cultivation by a bargadar shall be decided by a Board established for the local area within which such land is situated.

Section 9 provides inter alia that no Court shall entertain any suit or any proceedings whatsoever in respect of a matter required under sub-section (1) of section 7 to be decided by a Board referred to in that sub-section.

Section 18 provides that the provisions of this Act and of any rules made thereunder shall have effect notwithstanding anything to the contrary in any other law, or in any custom, usage, contract, or instrument.

Mr. Chakravarty, appearing for the appellant, wanted us to read into section 18 the words "in proceedings before a Board". We can see no justification for this. The Legislature has plainly stated that the provisions of the Act shall have effect notwithstanding anything to the contrary in any other law or custom, usage, contract or instrument and they must be taken to mean what they said namely that it shall have effect everywhere.

Mr. Chakravarty''s next argument was that the bar of the second sub-section of section 9 against a Court entertaining a suit in regard to termination of cultivation is not applicable here as admittedly no Board has been established in the area. If no Board has been established for the local area within which the land is situated as is admittedly the case here, there is no scope of a decision by the Board because of section 7(1). That cannot however preclude the operation of subsection (2) of section 9. If the law requires that a matter shall be decided by a Board established for the local area within which the land is situated and no local Board has been established, the position is that there can be no decision by a Board, but that does not give the Civil Courts a right because the matter still remains one "required under sub-section (1) of section 7 to be decided by a Board referred to in that sub-section." It is certainly inconvenient and, if we may say so, undesirable that there should be no Board for the local area inspite of the fact that the jurisdiction of the Civil Courts was taken away, but that is a difficulty which we cannot remedy. The law must prevail inspite of the omission of the authorities concerned to establish Boards u/s 6 of the Act.

We are therefore bound to hold that the trial Court was right in thinking that the Civil Courts could not entertain these suits because in substance what the plaintiff wanted to do was to terminate the cultivation of the lands by bargadars. The prayer for mesne profits and for possession of the ghars on which the adhiars lived was merely ancillary to the main prayers and if the suit as regards the main prayer was not entertainable no suit could be entertained for these ancillary prayers.

In the view we have taken of the matter, it is not necessary for us to consider whether if the Civil Court had jurisdiction, the suit should have succeeded. We may merely indicate however that if we have been persuaded to hold that the Civil Courts had jurisdiction, we could have no hesitation in deciding that the present suits were bound to fail as they were not brought on any of the grounds mentioned in section 5(1). The appeals are accordingly dismissed with costs.