Sudhir Chandra Manna vs Srish Chandra Dhara

Chatterjee, J.—This is a petition under article 227 of the Constitution against an order of the appellate authority under the Land Reforms Act dismissing an appeal against an order of the trial authority. The trial authority directed the Bargadar to deliver paddy in the share of the owner for the years 1370 and 1371 B.S. or to deliver the price in lieu thereof. The appellate authority affirmed the said order. The Bargadar is the petitioner before this court. According to the Bargadar, the owner''s interest has vested in the State of West Bengal. Before the appellate authority it was not disputed that the land in question vested in the State of West Bengal. But there was no evidence before the appellate authority to prove that the State of West Bengal took possession of the land in question u/s 10(2) of the said Act at any time prior to 1370 or 1371 B.S. According to the Bargadar, the interest of the owner having vested in the State of West Bengal, the said owner is not entitled to any share of produce of the property.

The appellate authority held that as the Bargadar deposed and he admitted that he was the Bargadar under the owner, the deity, the objection was thus considered to be of no substance. It is urged on behalf of the petitioner that if in law the owner has no interest in the property and if the property has ceased to be the property of the owner and if it is vested in the State of West Bengal, the owner has no further right to claim the share of produce. It is urged by Mr. Naskar, on behalf of the petitioner, that in spite of such admission by the Bargadar, he is entitled to show that the admission on a question of law is not binding. It is urged whether there was in law a relationship of owner and Bargadar is a question of law; hence, such admission is not binding. I am inclined to agree with Mr. Naskar on this matter. Hence, we have to consider the legal position. The legal position is that the alleged owner in question has no further interest in the property and, therefore, it may appear that he is no more entitled to any share of the produce. The owner does not in such transactions grant any right, title to or interest in the land to the Bargadar. The Bargadar has, therefore, no title. If the owner loses his title, the Bargadar may lose nothing, the owner contracts with the Bargadar that the Bargadar will cultivate land in possession of the owner and in consideration of such cultivation, deliver a share of the produce to the owner. If the interest of the owner vests, the Bargadar may still continue to be in possession; if he continues in such possession, is he liable to deliver a share of the produce ?

The learned Advocate for the petitioner has referred me to a decision of Sinha, J. (as his Lordship then was) in (1) Azizus Subhan v. The State of West Bengal, reported in 63 CWN 666 at page 673. His lordship held as follows :

So far as vesting is concerned, nothing further remains to be done, and tenants must at once pay rent to the Slate. Section 10(2) merely enables the Collector to require an intermediary or any person in possession of an estate which has vested in the State Government to give up possession by dates..........

Hence, it was found that it could not be said that the State of West Bengal had no right to collect rent. With great respect I agree with this view. The landlord''s interest being vested in the State, the tenant would not be estopped u/s 116 of the Indian Evidence Act from showing that the landlord has not, at the date of demand, any right to demand rent. A tenancy is an interest in land and a person not entitled to the land is not entitled to the rent except in cases covered by section 116 of the Evidence Act. This does not, in any way, solve our problem. Here the question is not whether the owner lost title to the property but whether because of such loss of title of the owner, the agreement between the owner and the Bargadar came to an end. The aforesaid decision does not answer that problem.

I have next been referred to another decision reported in (2) Bijoy Krishna Dey. and Others Vs. Sub-Divisional Land Reforms Officer, . It was held that the interest of the raiyats also vested and further the payment for licence fee must be taken to be an ad hoc payment and this was considered not permissible. I do not think this judgment helps us in any way in solving the problem aforesaid. On behalf of the opposite party, I have been referred to two unreported decisions of this court. P. N. Mookerjee, J. considered whether the owner would be entitled to his share of produce after the vesting of his estate in the State of West Bengal but before the State of West Bengal took possession. His lordship found that the owner would be so entitled. His lordship considered the definition of the word ''Bargadar'' in the Bengal Tenancy Act and found as follows :

In the circumstances, the land, given in barga, would still continue to be the khas land of the owner...... inspite of vesting, the owner would continue in possession until possession is taken by the State.

As the plot of land would still continue to be khas land of the owner, the Bargadar was found liable. This was decided in (3) Sunil Sardar v. Gobinda Prosad Dhara, Civil Revision Case No. 1882/62. In another (4) Subimal Chandra Jana v. Suryanarayan Karan, Civil Revision Case No. 2210/64, P. N. Mookerjee, J. followed the decision of Sen, J. reported in (5) Ganesh Chandra Mahata v. Sudarshan Dey, 62 CWN 360. I agree with the findings of Sen, J. in the aforesaid case reported in 62 CWN, and also with the decision of P. N. Mookerjee, J. in Civil Revision Case No. 1882/62. Under the Land Reforms Act, a Bargadar is a person who cultivates the land of another person on condition of delivering a share of the produce of such land. The word ''owner'' has not been defined. In section 16 of the said Act, sub-sections 1 and 2 refer to the person whose land the Bargadar cultivates and section 16(3) uses the word ''owner'' to mean the person whose land he cultivates.

Under the Estates Acquisition Act, the interest of the owner vested in the State. He had no title to the property. But even if he loses his title he may continue in possession. u/s 4 of the Estates Acquisition Act, the interest of the owner vested in the State on the 1st Baisakh, 1362 B.S. Section 10 (1) of the Estates Acquisition Act provides that the Collector will take charge of the estate vested and section 10(2) defines how and when the Collector will take possession. Hence, the Act implies that in the interim period, i.e., pending actual delivery of possession, the former owner would possess. I find it difficult to say that the former owner had no right to possess during the interim period even though his right, title and interest vested in the State. Such an owner, in my opinion, is merely permitted to occupy but has no right to possess.

The problem is whether the contract made between the owner and the Bargadar has ceased to be in force because of vesting. The contract was a valid contract at the date when the contract was entered into. The question is whether the contract has become void after the contract was made. I may at once refer to the second part of s. 56 of the Indian Contract Act. That part is as follows :

A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promiser could not prevent, unlawful, becomes void when the Act becomes impossible or unlawful.

In a decision reported in (6) 1954 Supreme Court Reports 310, Satyabrata Chose v. Mungneeram Bangur, the Supreme Court held as follows :

The doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the Act agreed to be done and hence comes within the purview of section 56 of the Indian Contract Act. The view that section 56 applies only to cases of physical impossibility and that where this section is not applicable recourse can be had to the principles of English law on the subject of frustration, is not correct. English cases can have only a persuasive value and are only helpful in showing how English courts decide cases under similar circumstances.

Section 56 of the Indian Contract Act lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties.

With this idea of section 56 of the Indian Contract Act we have to examine the said section. Here, there is a contract to do an act, that is, to cultivate, which contract was good at the date of the contract. It is urged that after the contract was made the performance of that Act became impossible. I find no reason to hold that cultivation of such land was impossible simply cause the property of the owner vested in the State of West Bengal. It may be so in cases of diluvion. Cultivation did not become impossible by vesting as a matter of fact nor as a matter of law. But it is next urged that by reason of the provision of the Estates Acquisition Act and by reason of vesting of the estates, the contract to cultivate became unlwaful, it was unlawful for the Bargadar to cultivate the land not then belonging to the owner, I do not think so. The Estates Acquisition Act makes the provision u/s 10, subsection 2 for taking over possession of such land. Hence, the Estates Acquisition Act implies that the former owner would continue in possession after vesting in 1362 B.S. until possession is taken by the State of West Bengal. I cannot therefore, say that the possession of the owner of the land after the vesting was by itself unlawful. Therefore, possession of the Bargadar of such land would not become unlawful. But as soon as possession be taken over by the State of West Bengal, u/s 10 of the Estates Acquisition Act, it would be unlawful for the owner to possess the land and it would, therefore, be unlawful for the Bargadar to possess the land under the former owner, who could not lawfully possess. Hence, the contract to cultivate and to deliver a share of the produce in consideration of such cultivation would not become void on the vesting of the estate provided possession had not till then been taken by the State from the owner; but if possession had been taken by the State of West Bengal, it would be unlawful for the owner to continue to possess. It would equally be unlawful for the Bargadar to continue to possess under that owner in question. Hence, u/s 56 of the Indian Contract Act, the contract would become void after delivery of possession u/s 10(2) of the Estates Acquisition Act. In the circumstances of the case, no possession till then being taken by the States of West Bengal, the contract did not cease to be valid and the contract did not become void. Hence, the bargadar must obey the terms of the contract and he must deliver a share of the produce till the taking over possession by the State of West Bengal. The result is I agree with the decision of the authorities below; but my reasons are as stated aforesaid. The Rule is discharged, no order as to costs.