Ratindra Nath Pal vs Subodh Gopal Bose

P.K. Banerjee, J.—This appeal at the instance of the Plaintiff-Appellant is directed against the judgment and decree passed by the learned Additional District Judge, Howrah, dismissing the suit for ejectment. The Defendant, a brick manufacturer, took a lease for 9 months for the first instance from Magh 1338 B.S. to Aswin 1339 B.S. It was continued from time to time. The rent was for a sum of Rs. 250 per month which subsequently was enhanced to Rs. 300 per month. It is alleged by the Plaintiff that the Defendant became a defaulter and the Plaintiff terminated the lease after service of notice to quit, but as the Defendant did not comply with the notice, the suit for ejectment, arrears of rent and mesne profits was brought. The trial Court decreed the suit. The appeal was taken by the Defendant and the Appellate Court allowed the appeal. The Plaintiff preferred the present appeal before this Hon''ble Court. The Appellate Court dismissed the Plaintiffs'' claim for khas possession but decreed the claim for the rent. Mr. Amarendra Nath Gupta, on behalf of the Appellant, contended that the tenancy was to be governed by the provisions of the West Bengal Premises Tenancy Act and the finding of the Appellate Court on the question of notice was wrong; and secondly, that the Appellate Court was wrong in holding that the suit was not maintainable in view of the vesting of the estate in the State of West Bengal u/s 4 of the West Bengal Estates Acquisition Act. But on consideration of the facts we hold that the land for the purpose of brick-field was let out and the structures were erected. But we find that the notice of 6 months terminating the lease is valid and in fact is not very much disputed before us.

But the main point argued by Mr. Gupta is that the Court of Appeal was wrong in holding that the suit was not maintainable in view of the provision regarding the vesting under the West Bengal Estates Acquisition Act, 1953. Mr. Gupta argued that the tenancy was terminated with the expiry of Aswin 1359 B.S. and the suit was brought on November 29,1962. The West Bengal Estates Acquisition Act, 1953, came into force on April 15, 1955, long after the determination of the tenancy and filing of the suit and the Plaintiff''s right to get possession accrued before the coming into force of the West Bengal Estates Acquisition Act and, as such, the provision of the said Act does not at all affect the suit itself. Moreover, it was submitted by Mr. Gupta that the fact of vesting does not at all affect the pending suit or appeal. In support of his contention Mr. Gupta referred to a Bench decision of this Hon''ble Court in Lalji Agarwalla Jain v. Jhingu Goala (1957) 61 C.W.N. 607 wherein Mr. Justice P. N. Mukherjee (as he then was) held as follows:

At the hearing, a preliminary objection was raised to the maintainability of 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 hhcos. If the present appeal succeeds, the Appellant will be entitled to khas possession of the land though that possession will ultimately ensure 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 overrule the preliminary objection and proceed to decide the appeal on merits.

This decision was again followed by the Division Bench of this Court in M.L. Dalrriia & Company v. Chinta Haran Mukherjee (1958) 62 C.W.N. 505.

Mr. Pramatha Nath Mitter, appearing for the Respondent, however, contended that at the date of vesting the Plaintiff-Appellant might have at best right to get possession which cannot be equated with khas possession. Mr. Mitter further submitted that after the vesting, the intermediary cannot maintain a suit for khas possession of the land as he had no subsisting title to the suit land and the estate had vested in this State free from all encumbrances. The Plaintiff can only get compensation as provided in the Act itself and nothing else. He cannot get khas possession of the land after the vesting of the estate in the State of West Bengal. In support of his contention Mr. Mitter relied on the decision of the Supreme Court in Ram Ran Bijai Singh and Others Vs. Behari Singh alias Bagandha Singh, ; Raja Sailendra Narayan Bhanj Deo Vs. Kumar Jagat Kishore Prasad Narayan Singh, ; Haji Sk. Subhan Vs. Madhorao, and Surajnath Ahir and Others Vs. Prithinath Singh and Others, . Mr. Mitter further submitted�in view of the Supreme Court''s decision it cannot now be stated that the decisions reported in Lalji Agarwalla Jain v. Jhingu Goala and M. L. Dalmia. & Company v. Chinta Haran Mukherjee are good law. Mr. Mitter also relied upon an unreported Bench decision of this Court in Paxitosh Dutt v. Phani Bhusan Kundu Unreported Bench decision of Chatterjee and P. K. Banerjee, JJ., dated February 10, 1969, in F.A. No. 648 of 1969 on February 10, 1969, wherein it was held that after vesting the Plaintiff had no right to possession.

Before I deal with the argument advanced by the parties, I may point out that the question of vesting was not in issue in the Court below and no finding was made in the judgment by the learned Munsif. It appears, however, that on September 17, 1956, that the Defendant stated that the Plaintiff was an intermediary in the disputed land and their interest had been vested in the State of West Bengal with effect from Baisakh 1, 1362 B.S. and, as such, the suit was not maintainable. In the said application, however, they prayed that the suit be stayed as provided u/s 46 of the West Bengal Estates Acquisition Act. It appears also from the records that P.W. 1 on behalf of the Plaintiff, in his evidence, states that they are intermediaries in respect of the disputed land and that they have retained the disputed land as their khas land. The point for our consideration is, therefore, whether the land which was admittedly tenanted but the tenancy was terminated and suit for ejectment was pending could be stated to be khas land of the Intermediary and whether that the suit for recovery of the said tenanted land was maintainable after the vesting of the estates under the West Bengal Estates Acquisition Act. At the outset I may say that the decisions reported in Lalji Agarwalla Jain v. Jhingu Goala (Supra) and M.L. Dalmia if Company v. Chinta Haran Mukherjee (Supra) support the contention put forward by Mr. Gupta. Without more I would not have any hesitation in following the same and hold that such suit is maintainable. But in view of the Supreme Court''s decision, which I shall presently discuss, I am of the opinion that the view taken in the said decisions can no longer hold the field and must be taken to have been impliedly overruled.

In this case, Ram Ran Bijai Singh v. Behari Singh (Supra), it was held that the right to possession cannot be equated with that khas possession or, in other words, it was held by their Lordships that that ''Equation'' of the right to possession with khas possession is not justified on principle or authority. Mr. Gupta, however, wanted to distinguish the case on the ground that the judgment in respect of the interpretation of Bihar Land Reforms Act, and in the Bihar Land Reforms Act khas possession is defined in Section 2(K) of the said Act, but in the West Bengal Estate Acquisition Act khas possession has not been defined at all and, as such, the said case cannot be treated as an authority. It appears that in Section 2(K) of the Bengal Land Reforms Act khas possession is defined to mean actual possession of the properties though that definition is wanting in the West Bengal Estates Acquisition Act, still it cannot be doubted on reading other provisions of Section 6 that khas possession can only mean actual physical possession of the intermediary in order that he may exercise option to retain the lands u/s 6 of the West Bengal Estates Acquisition Act. In the decision in Haji Sk. Subhan v. Madhorao (Supra), it was held that after the vesting the proprietor''s right vested in the State and as a consequence thereof the proprietor''s right under a decree to obtain possession is lost, as such right follows from the recognition of the proprietor''s right of possession over the land, and once that right is lost, the proprietor cannot obtain possession thereof. In the case of Raja Sailendra Narayan Bhanj Deo v. Kumar Jagat Kishore Prasad Narayan Singh (Supra) it was also held that after the vesting of the estate in the State Government, free from all encumbrances, a decree for redemption of mortgage becomes infructuous on the ground that after the vesting of the estate in the State khas possession cannot be obtained from the mortgagee and the mortgagor ceases to be entitled to the property. He and the mortgagor has no right to redeem it. In the case of Suraj Ahir v. Prithinath Singh (Supra) it was also held by the Supreme Court that the proprietor after the vesting of the estate had no subsisting right to recover possession and that right vested in the State. On the basis of aforesaid decisions I cannot but hold that after the vesting of the estate, under the West Bengal Estates Acquisition Act, in the State, the Plaintiff intermediary''s suit for recovery of possession is not maintainable and must be dismissed.

The appeal is, therefore, dismissed. The suit is hereby dismissed. The parties will bear their own costs throughout.

S.K. Chakravarti, J.

I have had an opportunity of going through the judgment just now delivered by my learned brother and I agree with the conclusions arrived at by him as also the reasoning behind the same. I would like to add a few words of my own.

Three main points arise in this appeal: (i) Is the interest of the Plaintiffs in the property in suit that of an intermediary as the term has been defined in the West Bengal Estates Acquisition Act ? (ii) If so, has this interest vested in the State of West Bengal ? (iii) If so, is the suit maintainable ?

So far as the first point is concerned, the record of rights would show the interest of the Plaintiffs is that of a tenure holder or intermediary. Besides that there is the evidence of one of the Plaintiffs as referred to by my Lord.. Mr. Gupta appearing on behalf of the Plaintiffs Appellants has urged that the tenancy is governed by the West Bengal Premises Tenancy Act. If that had been so then no record of rights could have been prepared for the same. Moreover, the property in question is situated in the rural areas of the district of Howrah. Section 1 of the West Bengal Premises Tenancy Act of 1950 would show that it extends to the whole of Calcutta and to all areas which have been or may hereafter constitute municipality under the provisions of the Bengal Municipal Act, 1932. There is also a proviso to the effect that the State Government may by notification extend this Act or any part thereof to any other area specified by the notification. It is for the Plaintiffs to show that there has been any relevant notification extending the Act to the area where the property is situate. That they have not done. In the circumstances, so far as this proceeding is concerned it must be held that the West Bengal premises Tenancy Act would not apply.

The question now is as to whether this interest of the Plaintiffs has vested in the State of West Bengal. Mr. Gupta contends that as the evidence of the Plaintiffs would show that they had Published on 2.2.70. already applied for retention of these lands, it has not vested in the State. He relies on a decision of this Court in Tara Prasad Mukherjee v. Ganesh Chandra Mondal (1965) 70 C.W.N. 652. Our learned brother P. B. Mukharji, J. has held in this case that the terms ''khas possession'' as used in Section 7(l)(c) of the West Bengal Estates Acquisition Act, 1953, qualifies the word ''retain'' and that it is not necessary that the land must be in the khas possession of the intermediary at the time of vesting, but that even if such land be in the occupation of the tenants on the date of vesting, the intermediary will still have a right to retain such tenanted land on the assumption that he will get khas possession thereof at some future date. It is necessary to examine the framework of the Act in this connection. u/s 4, with effect from the date mentioned in the relevant notification, all estates and the right of every intermediary in each such estate, situate in any district or part of a district specified in the notification, shall vest in the State free from all encumbrances. Section 5 relates to the effect of such notification. Under Clause (c) of Sub-section (1) of Section 5, upon the due publication of a notification u/s 4 on and from the date of vesting subject to the provisions of Sub-section (3) of Section 6, every non-agricultural tenant holding any land under an intermediary, and until the provisions of chap. VI are given effect to, every raivati holding and land under the intermediary shall hold the same directly under the State as if the State has been the intermediary and on the same terms and conditions as immediately before the date of its vesting. This section would clearly indicate that on and from the date of vesting every raiyati holding land under an intermediary would become a direct tenant under the State or, in other words, on and from the date of vesting all the tenanted lands under an intermediary would vest in the State. This proviso is subject only to Sub-section (3) of Section 6 and of no other section or Sub-section. Sub-section (3) of Section 6 relates to lands comprised in a tea garden, mill, factory or workshop and would, therefore, not be attracted to the facts of the present case. With due respect to his Lordship, I must point out that if his interpretation be accepted, then Section 5(l)(c) would be inconsistent with the provisions of Section 7(l)(c) of the Act. Unfortunately, his Lordship''s attention was not drawn to this aspect of the matter. Where the clear language of the statute shows that the tenanted land under an intermediary would vest in the State, it is not permissible to the Court to hold that an intermediary could retain lands which were tenanted on the date of vesting. We desist, therefore, with due deference that this view of his Lordship we cannot accept. As the framework of the Act stands, all the tenanted lands under an intermediary must be deemed to have vested in the State on and from the date of vesting, and, as such, in the present case also the interest of the Plaintiffs in the property in suit has vested in the State of West Bengal. There can be no question of their retaining the tenanted lands. We are of opinion that to attract the provisions of Clause (c) of Section 7(1) of the Act, the non-agricultural land must be in the actual khas possession of the intermediary on the date of vesting.

The last point is as to whether on the findings above the present suit would be maintainable. Mr. Gupta has urged that when there are clear decisions of this Court to show that even in the circumstances stated above, a suit for possession would be maintainable, the present suit must be held to be maintainable. He has submitted that the decisions of the Supreme Court as referred to by the other side and also by my Lord in his judgment, would not apply as these are not on the West Bengal Estates Acquisition Act, 1953, and that the same are based on the provisions of other Acts which have no bearing on the West Bengal Estates Acquisition Act, 1953. He has further submitted that if we want to differ from the decisions in Lalji Agarwalla Jain v. Jhingu Goala and M.L. Dalmia if Company v. Chinta Haran Muhherjee we should refer the matter to the Full Bench in accordance with the rules framed by this Court. As my Lord has pointed out, the decisions of our Court in this respect must be deemed to have been overruled by the decisions of the Supreme Court. No doubt, in some of the decisions of the Supreme Court, one of the grounds was the definition of ''khas possession'' as used in the particular Act, specially the Bihar Act, but still a plain reading of the decisions would clearly indicate that their Lordships in the main proceeded on the basic principles of law and not on the language of any particular Statute in coming to the conclusion that where the interest of a person has vested in the State a suit for possession by him would not be maintainable. In this view of the matter, the decisions of our Court as referred to above must be deemed to have been impliedly overruled by the decisions of the Supreme Court, and we are bound to follow the decisions of the Supreme Court, when the same are in conflict with the decisions of this Court. The question of our differing with the Division Bench decisions of this Court, therefore, does not arise and necessarily also reference to the Full Bench is not, therefore, called for.

I agree with my Lord in the circumstances that the instant suit is not maintainable and on this ground should be dismissed.