Sashi Bhusan Adhikari vs Golap Kamini Debi

Das, J.—This is an appeal by the Plaintiff against a decision of Sri K. ST. Chakrabarti, learned Subordinate Judge, Bankura, reversing a decision of the learned Munsif, first court of that place.

The suit out of which this appeal has arisen, was for a declaration that the first order passed by the Collector on January 29, 1946, in Miscellaneous Case No. 729 of 1945-46 under the Bengal Alienation of Agricultural Land (Temporary Provisions) Act (Bengal Act v. of 1944) is illegal, void and ultra vires and for a further declaration that the Plaintiff''s title to the lands purchased has not been affected by the said order. There is also a prayer for permanent injunction restraining the Defendant from disturbing the Plaintiff''s possession in the suit lands.

The defence was that the order passed by the Collector is final and a civil court has no jurisdiction to go into this matter. The learned Munsif decreed the Plaintiffs suit and made the necessary declarations which are set out in his order.

On appeal by the Defendant, the learned Subordinate Judge has reversed the decision of the trial court and has dismissed the Plaintiff''s suit. Hence this appeal by the Plaintiff.

The sole question is whether a suit of the present description is barred u/s 10 of the aforesaid Act. The Defendant sold the disputed property to the Plaintiff for an alleged consideration of Rs. 499. The kab�l� recited that Rs. 99 was paid in cash and that the balance of Rs. 400 was retained by the purchaser for discharging certain debts which were binding on the property. After the passing of the aforesaid Act the Defendant (who is the vendor) made an application to the Collector for restoration of possession of the lands sold by him. In the petition it was recited that the consideration was Rs. 60 only. The Plaintiff purchaser entered appearance with a view to contest the proceedings. On January 29, 1946, the Collector recorded the following order:

Both parties file hajir�; second party does not appear on call. Evidence recorded on behalf of the Petitioner. I restore the land transferred u/s 4 of Act v. of 1944 to the Petitioner subject to the following conditions....

and then the conditions are set out. Thereafter the Plaintiff appeared and moved the Collector for a reconsideration of the order. The Collector reconsidered his previous order and dismissed the application. Against this later order the Defendant moved the learned District Judge in revision u/s 10 of the aforesaid Act. The learned District Judge reversed the later order made by the Collector on the ground that the Collector had no power to review his own order. The result was that the first order of the Collector restoring possession to the vendor, that is, the Defendant, stood. The Plaintiff thereupon brought the present suit for a declaration, as I have said, that the first order of the Collector was void and ultra vires. The question is whether such a suit lies. Section 4 of the aforesaid Act empowers the Collector to restore possession of the properties which may have been transferred between the dates January 1, 1943, and January 1, 1944, provided the consideration thereof did not exceed Rs. 250. The Plaintiff''s case is that the consideration in this case as recited in the kab�l� was Rs. 499 and, as such, the Collector had no jurisdiction to make the order complained of, and his order was, therefore, without jurisdiction. It appears from the finding of the lower appellate court that a sum of Rs. 99 was paid in cash. The recital in the kab�l� shows that the sum of Rs. 400 was retained by the purchaser with a view to pay certain encumbrances. The fact whether the encumbrances have been paid off or not is not material. The purchaser took the liability of paying off these encumbrances, and this liability must be regarded as a part of the consideration for the kab�l�. The order of the Collector which is challenged in this suit does not specify that the Collector was satisfied that the consideration did not exceed Rs. 250. In my opinion, the effect of Section 10 of the aforesaid Act conferring finality on the order of the District Judge does not bar the jurisdiction of the civil court. Section 4 of the said Act does not vest the Collector with final jurisdiction to decide what the consideration is. It is no doubt true that this is a step which is necessary for him to consider in order to assume jurisdiction. At the same time, I am of the opinion that as his decision on this question of fact has not been made final, the civil court has not been deprived of its jurisdiction to go into this matter: see the observations of Lord Esher M.R. in the case of The Queen v. The Commissioners for the Special Purposes of income tax (1888) 21 Q.B.D. 313, 319. The decision in the case of Secretary of State v. Mask and Co. ILR [1940] Mad. 599: L.R. 67 IndAp 222 which was relied on by Mr. Mukherji also supports the above view. In these circumstances, I am of the opinion that the civil court had jurisdiction to try this suit.

In the result, the contention urged on behalf of the Appellant must be given effect to. The appeal is, accordingly, allowed. The judgment and decree of the lower appellate court are set aside and those of the court of first instance restored. In the circumstances of this case, I direct that the parties do bear their own, costs in this Court and in the lower appellate court.

Appeal allowed