Nalini Kanta Gumtia vs Manmatha Nath Manna

Chatterjee, J.—This is a petition under Article 227 of the Constitution against an order for ejectment from land on the ground that the Petitioner, a bargadar, has contravened the provisions of the Act.

The only contravention which has been found by the appellate Court is that the Petitioner did not deliver owner''s share of produce of pulses (kalai) grown in some of the plots which the bargadar held under the owner. The allegation of the owner was that there was contravention of the provision of the Act with reference to the delivery of the produce of the paddy. The authorities below have concurrently found that there was no contravention of the provisions of the Act with respect to the delivery of the share of paddy of the owner. Both the authorities below found that the owner made it impossible for the bargadar to deliver paddy within the period limited by law. Hence, that question does not arise for consideration.

With regard to pulses (kalai) the trial authority found that kalai was grown in the land, but there was a custom of remission for first three years of cultivation of a new crop. Kalai was cultivated as a new crop during the period in question. Therefore, the bhagchash officer held that there was a custom in the locality for remission and because of such custom there was no default, even if the share of the produce of pulses had not been delivered. The appellate authority, however, found that there was no case of custom made out by the bargadar or by any of his witnesses; there is no evidence relating to the custom as aforesaid. The appellate authority granted an order for eviction. Against that order the Petitioner has moved this Court.

Mr. Bhunia, on behalf of the Petitioner, has first urged that the owner having made a claim for paddy and not having joined with it a claim for eviction the said claim for eviction is barred under the provision of Order 2, Rule 2 of the Code of Civil Procedure. The question, therefore, arises whether Order 2, Rule 2, Code of Civil Procedure, applies to a proceeding under the West Bengal Land Reforms Act. I have been referred to Section 57 of the West Bengal Land Reforms Act. That section refers to the CPC and under that section the officers, dealing with the proceeding under this Act, are to exercise their power as if they were Civil Courts under the CPC and for particular purposes the authorities will have the same power as the Civil Court. Order 2, Rule 2, Code of Civil Procedure, does not confer any power upon a Civil Court, but it merely bars a remedy available to the Plaintiff and there is nothing in Section 57 which would make Order 2, Rule 2, Code of Civil Procedure, applicable to the proceeding under the West Bengal Land Reforms Act. Order 2, Rule 2 is not based on what may be called the principles of justice, equity and good conscience, but they are technical rules laid down in that Code to avoid multiplicity of proceedings. There is nothing in the West Bengal Land Reforms Act that such proceedings would be bad for multifariousness. I do not think Order 2, Rule 2, Code of Civil Procedure, is attracted because of Section 57 of the West Bengal Land Reforms Act. There is nothing in that section to attract it.

I have next been referred to Rule 6 and it has been urged that an application shall be made in respect of matters referred to u/s 18(1) and it is urged further that if there is an application wherein there may be a case of delivery as also a case of termination, both the claims should be included in the same application. The cause of action for termination is referred to in Section 17 of the Land Reforms Act and the cause of action for delivery is u/s 16 of the Act. u/s 17 there may be a cause of action for ejectment if there is contravention of the provisions of this Act and u/s 16 there will be a cause of action for the sharer of the produce if not delivered. It may be that under certain circumstances, the owner may be entitled, to both the reliefs, but that is no reason to hold that he must exercise any option with regard to one. He may under the Act apply for ejectment provided the produce has not been delivered within the time limited by law and he may apply for the share provided it has not been delivered. In the latter case it does not matter whether it was not delivered in time or beyond time. Rule 6 merely provides for an application for a decision with regard to the matters u/s 18(1) and it does not say that if more than one reliefs are to be obtained with respect to the same cause of action, they must be united in the same application. Rule 6 provides no bar if one of the claims is made and the other claim is not made, or, in other words, Rule 6 does not provide anything which is in substance equivalent to Order 2, Rule 2, Code of Civil Procedure, It merely says that an application is to be made with respect to a claim by the bargadar or by the owner. There is no provision that if all the reliefs are not claimed, the reliefs not claimed would be barred. Hence, neither Rule 6 nor Section 57 makes any provision for the application of Order 2, Rule 2, Code of Civil Procedure, or the principle referred to therein. Therefore, I must overrule that objection.

The next point urged is that if an owner files an application with regard to one of the reliefs, he necessarily elects one and waives the other. There is no question of election when a person is entitled to more than one reliefs with respect to the same cause of action. Election comes in when there are two alternative inconsistent remedies, but in this case there is no election because the remedies are not inconsistent. If one remedy is completely inconsistent with the other remedy, then the owner cannot have both the remedies. He must choose between them, but there is no question of any inconsistency in the reliefs claimed; one is for the share of the produce and the other is for ejectment and both can be granted to a person and the order can be executed with respect to both. Therefore, there is no question of the doctrine of election of remedies being applicable to the facts of the case. Almost the same view has been taken by a Division Bench of this Court in the case in Sk. Kansar Ali v. Sk. Saukat Ali (1964) 68 C.W.N. 601.

The next argument of Mr. Bhunia is that there was no agreement between the parties for delivery of kalai and if there was no agreement for delivery of kalai, there is no question of default. I entirely agree, but in this case there is no case made, by the bargadar that there was no agreement for not delivering kalai and his case was that no kalai was ever grown. If no kalai was ever grown in the land there is no question of an agreement with regard to such produce. Therefore, that is a case not made in the pleading and not urged in the Court below and cannot, therefore, be allowed to be urged in this Court.

The next point urged by Mr. Bhunia is that the principle of ''de minimis'' would apply. I do not think that there is any reason to apply that principle. It may be that the quantity of kalai deliverable was small in comparison with the quantity of paddy to be delivered, but if that was the agreement and if there was produce which was not trifling, the bargadar will have to deliver the same and in this case there is no finding of the Court of fact that the produce was negligible. Had the produce been negligible and had that been the finding of the Courts of fact, we would have neglected it. But none of the authorities below have considered that the produce was negligible.

The last point urged is that kalai was grown not in all the plots but in some of the plots and therefore, eviction should be limited with regard to those plots. That argument is based on an assumption that there were different contracts with reference to different plots. Whether there was a contract with reference to all the plots or whether there were different contracts for different plots, is a question of fact. It was for the bargadar to urge that there was no contract for all the plots but that there were different contracts for different plots. In that case again a single application might not have been maintainable. But the bargadar never made that case before any of the Courts below and that question being principally a question of fact cannot be allowed to be urged for the first time in a petition under Article 227 of the Constitution.

The result is that the Rule is discharged.

There will be no order for costs.