Sidheswar Biswas vs State of West Bengal

Chittatosh Mookerjee, J.—The present Petitioners as Plaintiffs instituted a suit against the State of West Bengal and another in the Munsif''s Court at Bongaon, dist. 24-Parganas, inter alia, for a declaration of their title to 49 decimals of land in, plot No. 422, R.S. khatian No. 1550 of mouza Manigram under P.S. Bongaon, dist. 24-Parganas and for injunction to restrain the Defendants from interfering with their possession therein. The Defendants in the said suit filed separate written statements contesting the Plaintiffs'' claim. The trial Court originally framed nine issues in the said suit. Subsequently, two additional issues were framed, one of them being whether or not the suit was barred under the provisions of Section 57B of the West Bengal Estates Acquisition Act which was inserted in the Statutes during the pendency of the case.

The learned Munsif by his order dated October 31, 1973, stayed the suit as he was of the opinion that operation of the amended Section 57B came incidentally in the suit. Subsequently, the learned Munsif vacated the stay order and directed that the question whether the suit was not maintainable being hit by Section 57B of the West Bengal Estates Acquisition Act be decided at the time of the trial. Thereafter, the suit was adjourned to August 21, 1974, for peremptory hearing. On the said date, the case was opened. The learned Munsif first took up the matter relating to abetment of the suit u/s 57B of the West Bengal Estates Acquisition Act. The learned Munsif after giving reasons recorded in his order-sheet held that the suit clearly comes within the mischief of Section 57B of the West Bengal Estates Acquisition Act and the suit, therefore, abates. The Petitioners obtained the present Rule against the aforesaid order.

Mrs. Usha Dutt, learned Advocate for the opposite party No. 1, has raised a preliminary objection to the maintainability of the present revisional application. According to her, the above order of the learned Munsif holding that the suit has abated u/s 57B amounted to a decree and therefore, an appeal lay against the order complained of.

In my view, there is no substance in this preliminary objection raised on behalf of the opposite party No. 1. The decision on the question whether an order is decreed within the meaning of Section 2(2) of the Code of Civil Procedure, 1908, must depend upon its nature and contents : vide observations of Sir Asutosh Mookerjee J. in Deokinandan Singh v. Bansi Singh 14 C.L.J. 35. The order in question does not satisfy the essentials of a ''decree'' inasmuch as the same does not amount to adjudication conclusively determining the rights of the parties with regard to all or any of the matters of controversy in the suit. It is well-settled that ''rights'' within the meaning of Section 2(2) means substantive rights in regard to the subject-matter of the suit : vide Raja Bhup Inder Bahadur Singh v. Bijai Bahadur Singh L.R. 27 I.A. 209 and Dulhin Golab Koer v. Radha Dulari Koer ILR 19 Cal. 463 (468). Interlocutory orders on matters of procedure unless they determine substantive rights are not decrees. Therefore, the decisions on questions of limitation, jurisdiction, res judicata and maintainability of a suit which determine only the Plaintiffs'' right to sue have been held not to be decrees : See Chanmalswami Rudraswami Vs. Gangadharappa Baslingappa, , Shib Sharan Sha v. Janaki Nath Dey 18 C.L.J. 76 (80) and AIR 1943 140 (Lahore) . See also Mulla on CPC (vol. 1, 13th ed., p. 12) under the heading ''Finding on Issue''.

The West Bengal Estates Acquisition (Second Amendment) Act, 1973, was enacted in order that

...jurisdiction of the civil Courts should be effectively barred and all pending civil suits should abate so far as they relate to alteration of any entry in the Record of Rights, power to retain land and matters which are to be or have been already enquired and determined under the provisions of the Act, vide the Statement of Objects and Reasons of the West Bengal Estates Acquisition (Second Amendment) Act, 1973,

Section 57B partially excludes the jurisdiction of civil Courts, that is, the suit which relates to alteration of any entry in the Record of Rights, right to retain land and matters which might be or have been already enquired into and determined under the provisions of the West Bengal Estates Acquisition Act are no longer maintainable. In other words, the effect of enactment under Sub-section (2) of Section 57B is that no civil Court can entertain any suit or application concerning any land or estate or any right in such estate if it relies to matters specified in Clauses (a), (b) and (c) of Sub-section (2). The said provisions have been also made applicable in respect of suits and applications pending before the civil Courts immediately before the commencement of the West Bengal Estates Acquisition (Second Amendment) Act, 1973. It is provided that such suit or application shall abate so far as it relates to all or any of the matters referred to in Clause (a), Clause (b) or Clause (c). The expression ''so far as it relates'' clearly points out that abatement under the above provision would be to the extent and only in respect of the matters referred to in Clause (a), Clause (b) and Clause (c). The Court''s power to entertain future suit or to proceed with the trial : of the other matters involved in the said pending suit or application would not be affected.

The expression ''abatement'' in the present context means termination of suits without any decision on the merits, in so far as the said suits relate to any of the matters enumerated in Clauses (a), (b) and (c) of Sub-section (2) "of Section 57B. Trial of these matters have been stopped. Thus, an order recording" abatement u/s 57B(2) does not result in adjudication or determination of any of the substantive rights asserted by one party and denied by the other party. But, in spite of such ouster of its jurisdiction the civil Court is still competent to entertain certain classes of suits : vide Tarak Chandra Dholey v. Satya Narayan Singh (1975) 2 C.L.J. 246 (paras. 8 and 9). The said questions, however, do not arise here.

Chakravartti C.J. and Mallick J.

In Subodh Gopal Bose v. Nilabja Barani Debi and Ors. 59 C.W.N. 1056 considered the effect of abatement of suits under special laws in the context of Section 7 of the West Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950. The Division Bench in Subodh Gopal Bose v. Nilabja Barani Debi overruled the preliminary objection that an order of abatement under the said provision was appealable. Chakravartti C.J. in his judgment in Subodh Gopal Bose v. Nilabja Barani Debi pointed out that an order of abatement under the special law does not result from any decision by the Court itself, but the same occurs independently and of which the Court simply takes notice. The said abatement involves no adjudication of the rights of the parties with regard to any matter in controversy between them. A determination that a suit has abated u/s 7 does not differ in any essential respect from the determination that a particular suit or appeal had abated on account of the death of the sole Appellant or the sole Respondent. It was pointed out that in the latter cases the Court decides whether a death has taken place and whether the effect of the death is that no right to sue or to continue the appeal survives, but such determination does not make the order passed a decree or even an appealable order, because it is not mentioned among the orders enumerated in Rule 1 of Order 43 of the Code.

Subsequently, Das Gupta and Guha JJ. in Subodh Gopal Bose Vs. Burmah Shell Oil Storage and Distributing Co. of India Ltd., followed the decision in Subodh Gopal Bose v. Nilabja Barani Debi (Supra) and have held that no appeal lies against the order of abatement u/s 7, of the West Bengal Act VII of 1950. The Division Bench decisions in Subodh Gopal Bose v. Nilabja Barani Debi and in Subodh Gopal Bose v. Burmah Shell Oil Storage and Distributing Co. India Ltd. are binding upon me. I respectfully agree with the propositions of law laid down therein. The view I have taken in the present case regarding the effect of an abatement u/s 57B(2) is in accord with these Division Bench decisions.

The learned Advocates for both the parties placed before me the recent decision of R. Bhattacharya J. in Amritamay Ghosh v. State of West Bengal and Ors. 80 C.W.N. 205. Bhattacharya J. in the Said case has held that the revisional application before him against an order of the trial Court declaring that the title suit had abated in view of Section 57B of the West Bengal Estates Acquisition Act was not maintainable. The view of R. Bhattacharya J. is that by the order impugned the entire suit had been finally determined and therefore, the order in question was appealable as decree. Unfortunately, the decision in Amritamay Ghosh v. State of West Bengal and Ors. 80 C.W.N. 205 appears to be inconsistent with the Division Bench decisions in Subodh Gopal Bose v. Nilabja Barani Debi (Supra) and in Subodh Gopal Bose Vs. Burmah Shell Oil Storage and Distributing Co. of India Ltd., . Accordingly, I am bound to follow these Division Bench decisions regarding the legal effect of abatement of a suit under special laws.

R. Bhattacharya J. was inclined to hold that the effect of abatement u/s 57B and abatement under Order 22 of the Code are same. But an order recording abatement of a suit by the death of the sole Appellant or the Sole Respondent is not appealable as an appeal from decree or as an appeal from an order. Order 43, Rule (1)(k) only makes an order referring to set aside the abatement or dismissal of a suit appealable. R. Bhattacharya J. in para. 5 of his judgment had referred to the decisions of this Court in Naimuddin Biswas v. Maniruddin Laskar and Ors. 32 C.W.N. 299 and in Sabitribai Debi Vs. Jugal Kishore Das and Others, Chakravartti C.J. in his judgment in Subodh Gopal Bose v. Nilabja Barani Debi Supra (1059) had explained Naimuddin Biswas''s case. In Naimuddin Biswas''s case one of the Appellants had died and his heirs were brought on record. The said appeal was such that the rights to prosecute it did not survive to the remaining Appellant alone and in those circumstances the learned Advocate for the Appellants had prayed that the defect of party might be remedied by the Court by taking action in favour of the heirs of the deceased Appellant under Order 41, Rule 4 of the Code. Chakravartti C.J. observes that the observation in Naimuddin Biswas''s case (Supra) that an order of abatement was ''virtually'' a decree did not amount to saying that such an order was technically a decree, but what the Division Bench in Nai-Muddin Biswas''s case meant was that the abatement had terminated the rights of the deceased Appellant in the same manner as a decree against him would and therefore, the Court could not properly nullify the effect of the abatement by intervening in favour of the heirs of the deceased Appellant under Order 41, Rule 4 of the Code.

The observations in Sabitribai v. Jugal Kishore (Supra) regarding the effect of abatement should be read in the context of the facts of the said decision. The learned District Judge had held that the appeal before him abated against the deceased Respondent No. 10 and in view of the nature of the suit the appeal had abated in toto. S.K. Ghosh and Patterson JJ. allowed the second appeal holding that the deceased persons were joined in a suit as pro forma Defendants as they did not join as Plaintiffs and no issues were framed with respect to their interest and none of these deceased persons were interested in the result of the litigation and such persons were not necessary parties to the appeal. Therefore, even if the legal representative of the pro forma Respondent, who was dead, was not brought on record, the appeal did not abate in toto. The Division Bench in Sabitribai v. Jugal Kishore (Supra) distinguished the earlier decision in Naimuddin Biswas v. Maniruddin Laskar (Supra) which was cited before them.

The facts in Sabitribai v. Jugal Kishore (Supra) appear to be similar to the kind of cases contemplated in the judgment of Chakravartti C.J. in Subodh Gopal v. Nilabja Barani Supra (1059, right hand column). It was pointed out that when an appeal abates in respect of one of the several Appellants and the Court ultimately makes an order that the whole appeal had abated the true position would be that upon abatement in respect of one of the several Plaintiffs or Defendants in view of the nature of the suit the surviving Appellants are not competent to prosecute the appeal by themselves. In such case there is adjudication of rights of surviving parties and the said order would be a decree.

The decision of the Bombay High Court in Bhikaji Ramchandra v. Purshottam ILR 10 Bom. 220 and the decision of the Madras High Court in Subayya v. Saminadayyar ILR 18 Mad. 496, referred to in the judgment of Bhattacharya J. were considered by the Full Bench of the Lahore High Court in Niranjan Nath v. Afzal Hussain AIR 1916 Lah. 245. Shadi Lal J. delivering the opinion of the Full Bench held that

when a Court passes a purely formal order recognising the abatement which is a fait accompli, such an order, though virtually disposing of the suit, does not adjudicate upon any rights and cannot be treated as a decree. If, on the other hand, the order of abatement is the result of an adjudication upon the rights of the parties with respect to a matter in controversy and is not passed upon an application for the revival of the suit made under Order 22, Rule 9, it amounts to a decree and is appealable as such.

Mr. N.K. Mitra, learned Advocate for the Appellants, has drawn my attention to the decision of the Division Bench of the Allahabad High Court in Hamida Bibi v. Ali Husen Khan ILR 17 All. 172, which pointed out that the learned Judge in Bhikaji Ramchandra v. Purshottam ILR 10 Bom. 220 appeared to have overlooked the very important provisions of Section 371 of the Code of Civil Procedure, 1882, which allowed a person claiming to be the legal representative of a deceased to apply for an order to set aside the order of abatement. Therefore, in Hamida Bibi v. Ali Husen Khan ILR 17 All. 172 it was held that it could not be said that an order under the first para, of Section 366 was an adjudication which, as far as the Court expressing it, decided the suit or appeal.

In view of the foregoing discussions, I hold that the order impugned in the present Rule did not amount to a decree. The same obviously was not also appealable as an order for the simple reason that it was not covered by the provisions of Order 43, Rule 1 of the Code. It may be also pointed out that the Court below by the order impugned in effect disposed of only the issue No. 9 and the remaining issues framed by the trial Court still remained to be determined. Further, the Court below itself did not formally draw up any decree.

The order of the Court below is also not sustainable on merits. The Court below did not specify which particular clause of Sub-section (2) of Section 57B covered the instant case. I was a party to the decision in Tarak Chandra Dholey v. Satya Narayan Singh (Supra) wherein it was held that in a suit for establishment of title a person, whether he is a Plaintiff or a Defendant, is entitled to prove that the adverse entries in the Record of Rights are erroneous. Law does not require that one must bring a suit for alteration of such incorrect entries before a Court, before the Court pronounces such entries to be incorrect. Clause (a) of Sub-section (2) of Section 57B deprived the civil Court''s jurisdiction to entertain suits or application relating to alteration of any entry in the Record of Rights under chap. V of the Act, concerning any land or estate or any right in such estate. Thus, the object of Section 57B(2)(a) is to give finality to a proceeding under chap. V of the Act. But, there could no question of excluding the civil Courts'' jurisdiction to entertain suits in respect of the matters which do not arise at all or only incidentally arise for adjudication in such proceedings under chap. V.

The same reasonings would apply in the present case and therefore, the mere fact that the Plaintiffs'' case is that the entry in the R.S. records is erroneous cannot be a ground for non-suiting them made u/s 57B(2). Further, the trial Court without recording any evidence found that the suit property had vested in the State. The said finding without first recording evidence is clearly bad in law. The Plaintiffs in the instant case claim to be post-vesting transferees and they do not claim themselves to be intermediaries. In this case, hardly any dispute arises as to whether the Plaintiffs themselves are entitled to retain the land in suit. In case the persons who owned the land at the date of vesting did not or could not retain land in suit at the date of vesting, obviously the Plaintiffs possibly cannot get any relief in the instant suit. In the facts of this case, it would be in consonance with justice to direct the Court below to allow both parties to adduce evidence and to make their respective submissions on the different issues framed in the suit, thereafter the Court will dispose of the suit by recording its findings on all the issues including the issue No. 9.

I, accordingly, make this Rule absolute and set aside the order complained of. The case is sent back to the Court below for a fresh decision in accordance with law and in the light of observations contained in this judgment.

There will be no order as to costs.