Tarak Chandra Dholey vs Satyanarain Singh

Chittatosh Mookerjee, J.—The Petitioner in this Rule as Plaintiff had instituted a suit in the Second Court of Munsif at Serampore against the opposite parties, inter alia, for a declaration of his tenancy right and/or title to the lands described in schedules ''ka'' and ''kha'' of the plaint and for further declaration that the record of rights in so far as the same recorded the name of the Defendant opposite party No. 1 as a tenant under the State was wrong and that the rental recorded as Rs. 155 instead of Rs. 110 per year in respect of the schedule lands was wrong and that the R.S. khatian No. 3706 of ''kha'' schedule so far as it recorded Kundan Orao as a tenant under Kirti Chandra Mukhopadhyay and others instead of under the Plaintiff was wrong and that the Defendant No. 1 was just a caretaker and had no right, title and interest in the ''kha'' schedule properties and that there had been a revocation of the said entrustment. The Petitioner has also prayed for an order or permanent injunction for restraining the Defendant No. 1 from interfering with his alleged possession in the ''ka'' and ''kha'' schedule suit properties.

The Plaintiff-Petitioner has averred that all along he had been a korfa tenant in possession at a rental of Rs. 110 only per year in respect of properties described in Schedule ''ka'' under the then landlords Kirti Chandra Mukhopadhyay and others and his name was so recorded in the C.S. Record of Rights. He claimed that after enforcement of the West Bengal Estates Acquisition Act 1953, he had become a raiyat directly under the State of West Bengal, pro forma Defendant No. 2 in the suit. He had alleged that he had entrusted the Defendant-opposite party No. 1 Satyanarain Singh with the management of the said properties and he had allegedly leased out a portion of C.S. Plot No. 1772/2295 to one Kundan Orao. According to the Plaintiff-Petitioner the said Satyanarain Singh by making and manufacturing fraudulent and fictitious, illegal, invalid and inoperative papers and records in collusion with each other fraudulently got the lands in R.S. Khatian No. 3588 (new) recorded in his name and by opening of a three cottahs plot as R.S. Plot No. 1772/5678 in the name of Kundan Orao under Plaintiff''s landlords Kirti Chandra Mukhopadhyay and others instead of under the Plaintiff. The Plaintiff has claimed that the said record of rights were wrong and without foundation and that the Plaintiff and not the Defendant No. 1 was the tenant thereof under the State at the rent of Rs. 110 and not Rs. 155.

The Defendant No. 1 has been contesting the said suit. He has, inter alia, disputed that the Plaintiff was a tenant of the disputed land or that the record of rights in question were erroneous.

After the learned Munsif heard the above suit in part, the opposite party No. 1 set up a plea that in view of Section 57B of the West Bengal Estates Acquisition Act, 1953, the suit could not proceed. The learned Munsif passed an order that the suit falls within the ambit of the West Bengal Estates Acquisition (Second Amendment) Act, 1973 and therefore, the suit had abated. The Petitioner obtained the present Rule against the said order recording the abatement of his suit.

The instant suit by the Plaintiff-Petitioner was after the final publication of the Record of Rights. The said suit was never stayed either u/s 46 or in terms of the first portion of Section 57B of the Act. Therefore, the question of abatement of the said suit after the expiry of the period prescribed for appeal under Sub-section (3) of Section 44 does not arise. The learned Munsif while holding that the Section 57B debarred the Civil Court from trying the suit did not mention which particular clause of Sub-section (2) of Section 57B could apply.

Mr. Ganguly, learned Advocate for the opposite party No. 1 has submitted before us that under Clauses (a) and (c) of Sub-section (2) of Section 57B the jurisdiction of the Civil Court to entertain the instant suit is now barred. Therefore, it is necessary to examine the question whether the instant suit relates to alteration of any entry in the Record of Rights finally published, revised, made, corrected or modified under provisions of chap. V of the West Bengal Estates Acquisition Act. Secondly, whether the suit relates to any matter which under the provisions of the Act is to be or has been enquired into, decided, dealt with or determined by the State Government or any authority specified therein.

In case of ambiguity of language one of the cardinal rules for interpretation of statutes is to construe after looking to other sources which might throw light upon the meaning of statutory provisions. See Graies on Statute Law (6th ed., chap. VIII). Therefore, we might look to the surrounding circumstances which lead to the passing of the West Bengal Estates Acquisition (Second Amendment) Act, 1973. It is common knowledge that a large number of intermediaries, big raiyats and under raiyats had commenced legal proceedings to prevent vesting of their lands. Numerous proceedings under Sections 5A, 6(1), 10(2). 44 etc. were impugned by persons whose interests were liable to vest under the West Bengal Estates Acquisition Act. The West Bengal Legislature enacted the aforesaid Amendment Act of 1973 in order to remove what they presumably considered as obstacles in the way of achieving land reforms by barring the jurisdiction of Courts in the matters specified in Section 57B(2) of the West Bengal Estates Acquisition Act. 1953. Thus, the statement of objects and reasons of the West Bengal Estates Acquisition (Second Amendment) Act, 1973, was inter alia as follows:

Implementation of the provisions of the West Bengal Estates Acquisition Act, 1953 (W.B. I of 1954) has been greatly impeded due to institution of suits in Civil Court by intermediaries and big raiyats. A very large number of suits have been pending in different Civil Courts for years together. When the Act itself containing provisions for appeals which are heard by Tribunals and Special Judges, there is no reason why implementation of the Act and distribution of land which vested in the State by the operation of the Act, to landless cultivators should be further delayed through recourse to Civil Courts. It is, therefore, necessary that the jurisdiction of Civil Counts should be effectively barred and all pending Civil Suits so far should abate, so far as they relate to alteration of any entry in the record of rights power to retain lands and matters which are to be or have already been enquired into or determined under the provisions of the Act.

It is also necessary to provide for adjustment of arrear Government dues against the whole of the compensation pay able to an intermediary who is willing to have the dues to be adjusted.

The Bill has been framed with the above objects in view. Thus the amending Act was enacted not to take away completely Civil Court''s jurisdiction. The intendment was to partially exclude jurisdiction of Civil Courts. Civil Court''s jurisdiction has been barred only in respect of the suits which relate to (a) alteration of any entry in the Record of Rights, (b) power to retain land and (c) matters which are to be or have been already enquired and determined under the provisions of the Act.

In this connection, we may usefully refer to the summary of the law relating to the exclusion of jurisdiction of Civil Courts contained in the judgment of Hidayatullah C.J. in Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, . Hidayatullah C.J. after referring to the Privy Council''s decision in AIR 1940 105 (Privy Council) and in Raleigh Investment Company v. Governor-General in Council 74 I.A. 50 : AIR 1947 P.C. 78 (87) pointed out that these cases were decided on the provisions in the relevant Acts for correction and modification and setting aside of assessment and for the express bar of the jurisdiction of the Civil Court. The presence of a section barring the jurisdiction was the main reason and the existence of an adequate machinery for the same relief was the supplementary reason. At p. 84 it was pointed out that the question of ultra vires of the taxing laws was always open to the Civil Courts for it could not be the implication of any provision making a decision final that even void or invalid laws must be enforced without any remedy. The learned Chief Justice at p. 87 again pointed out that where the action of the authorities was wholly outside the law and was not a mere error in the exercise of jurisdiction, the Civil Court''s jurisdiction would not be taken away.

In Halsbury''s Laws of England (4th ed. vol. I para. 27) it has been stated:

As a general rule, a formula purporting wholly to take away recourse to judicial remedies against an act, order or decision is effective to bar challenge to voidable but not void acts orders or decisions, because the latter are not deemed to be acts, orders or decisions at all. The invalidity of a void act cannot be cured by waiver or acquiescence. Recourse to appeal against a void act does not cure the invalidity; indeed, appeal is generally an inappropriate means of challenge and in any event recourse to such an appeal is not necessary preliminary to impugning a void act in the Courts.

Again in Halsbury''s Laws of England (4th ed., vol. I, para. 60) it has been laid down:

The exercise of a statutory power is invalid unless the repository of the power has acted honestly and in good faith. The deliberate promotion of a purpose, be it public or private alien to that for which the power was conferred is to be regarded as an act of bad faith. Similarly, when rules of natural justice are violated the Civil Court may interfere with decisions of a special Tribunal.

Thus Civil Courts have jurisdictions in cases of disputes, not covered by the three different clauses of Section 57B(2) of the West Bengal Estates Acquisition Act, 1953. There is also no ''adequate machinery'' under the said Act for adjudication of other disputes of civil nature. Secondly, the above provisions of the West Bengal Estates Acquisition Act cannot exclude the jurisdiction of Civil Courts in cases where the provisions of the West Bengal Estates Acquisition Act had not been complied with or where a statutory Tribunal did not act in conformity with the fundamental principles of judicial procedure or it had acted mala fide. Thus, the Civil Court have jurisdiction when a particular proceeding or other was null and void.

Further, the said amending Act has sought to interfere with the common law right to institute suits and proceedings. Therefore, the Court should construe with strictness these provisions which entailed deprivation of such rights. Another reason why the above amending Act of 1973 should be construed strictly is that the said amending Act sought to take away jurisdiction of Civil Courts to entertain suits of civil nature concerning the lands covered by the West Bengal Estates Acquisition Act.

Mitra and Holmwood JJ. in the case of Ramgulam Singh and others Vs. Bishnu Pargash Narain Singh pointed out that a suit for declaration by a party that the Defendants were kashtkara with rights of occupancy and that the rental was Rs. 353-4-3 was not governed by Article 14. Schedule II of the Limitation Act, 1887. The final publication of record of rights merely raised a presumption of correctness of the entries. Therefore, it was not necessary for the Plaintiff to bring a suit to set aside the entry in the record of rights. He might have brought a suit for declaration that the entry in question contained erroneous statement. The suit was, in fact, not either in form or substance a suit to set aside an entry. We respectfully agree with the above statement of law.

In our opinion, the Record of Rights prepared under the provisions of the West Bengal Estates Acquisition Act are not fundamentally different in respect of their legal nature and import. It is true that the revisional Record of Rights have been prepared to carry out the purposes of the West Bengal Estates Acquisition Act, namely, to provide for acquisition of estates, rights of intermediaries therein and certain rights of raiyats and under-raiyats and of the rights of certain other person in land comprised in an estate. Neither chap. V of the Act nor the chap. V of the West Bengal Estates Acquisition Rules indicate that the Record of Rights would create or extinguish title. If we look to Rule 26 of the West Bengal Estates Acquisition Rules we would find that the particulars mentioned therein are to be recorded in respect of the person or persons in occupation, his status, nature and character of land rent payable and other incidents. The Act and Rules do not contain any provision for adjudication of title in the manner done by the Civil Courts. Rule 6 of Schedule B to the West Bengal Estates Acquisition Rules stipulates that person interested shall be called upon to appear with relevant documents in support of their title and possession at the time of attestation. The said Rule also provides for recording changes in the tenancies when same are brought to the notice of the Revenue Officer. Disputes of ownership of land or ownership of interest in land shall be decided by the Revenue Officer in a summary manner and on the basis of present possession or possession during the agricultural year preceding the year in which the date of vesting u/s 4 of the Act falls where notification under that section has been issued.

Thus, disputes regarding ownership are decided in a summary manner. Secondly, such decision are on the basis of possession. Therefore, the very nature of the proceeding for preparation of records of rights contain an inherent limitation upon the power of the authorities under the Act to decide question of title. When the West Bengal Estates Acquisition Act and Rules do not provide for detailed adjudication of title it cannot be said that the jurisdiction of the Civil Courts to entertain suits relating to title in respect of lands has been totally ousted. A suit in which the right to property is contested, is of a civil nature. The West Bengal Estates Acquisition Act in general and Section 57B thereof in particular, do not either expressly or even impliedly bar the jurisdiction of Civil Court to try such suits, merely because the correctness of entry or entries in a record of rights might incidentally be one of the issues in suits. Further the scope and effect of Clause (a) of Section 57B(2) should be read in the context of Section 44(4).

Under the amended Section 44(4) of the West Bengal Estates Acquisition Act a finally published Record of Rights shall be presumed to be correct. Thus, this section lays down a rule of evidence. The entries in the record of rights have only probative value and the Court is bound to proceed on it unless it is shown that it is incorrect. See Gour Chandra v. Birendra Kishore 22 C.W.N. 449. Recently, Murari Mohan Dutt J. in Ram Rami Shaw v. Sm. Bibhabali Basak and Ors. (1975) 1 C.L.J. 382 considered the scope of Section 44(4) and Section 57B. The learned Judge held that an entry in the record of rights is not a proof of title nor the record of rights is a document of title. It only raises a presumption as to the correctness of the entries in such records. Secondly, the jurisdiction of Civil Courts has been barred only in respect of matters enumerated in Sub-sections (1) and (2) of Section 57B of the Act. Thirdly the amendment of Sub-section (1) of Section 14 of the Act has not in any way altered the position which prevailed prior to such amendment. Hence, the entry in the record of rights finally published under the Act in favour of the Defendant has not raised any irrebuttable presumption.

It is well-settled that Record of Rights do not create any title in favour of any person. Sec Ram Golam v. Bishnu Pargash Supra. Records of Rights do not also extinguish any right and entries therein create nor take away any right. See Ahmed Hossain v. Digendra Narain ILR 62 Cal. 969 : 40 C.W.N. 22. Raj Krishna v. Barbani Coal Concern 60 C.L.J. 447. At the highest a record is proof of title only in so far as title is based on possession; Ronald Duncan v. Sri Iswar Radha 62 C.L.J. 10. See also the discussion at pp. 834-5 of the Bengal Tenancy, Act by A.C. Ghose (3rd ed., 1943).

Thus, it is not always necessary for a person who challenges in Civil Court the correctness of the entries in a Record of Rights to pray for setting aside the adverse entries. In a suit for establishment of title a person whether he is a Plaintiff or Defendant, is entitled to prove that adverse entries in the Record of Rights were erroneous. Law does not require that one must bring a suit for alteration of such incorrect entries before a Civil Court before the Court may pronounce such entries to be incorrect. Clause (a) of Sub-section (2) of Section 57B deprived the Civil Court''s jurisdiction to entertain suits or applications relating to alteration of any entry in the Record of Rights under chap. V of the West Bengal Estates Acquisition 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 proceeding under chap. V of the West Bengal Estates Acquisition Act. But there could be no question of excluding the Civil Court''s 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.

A suit for establishment of title and other ancillary reliefs against a private person cannot be said to be covered by Section 57B(2)(a). In the present case, we are not concerned with suits brought against the state challenging vesting orders or adjudication proceedings u/s 5A etc.

Clause (c) of Section 57B takes away Civil Courts jurisdiction to entertain any suit or application when (i) the same concerns any land or any estate or any right in such estate; (ii) the subject-matter of a particular suit has been already enquired into or decided or can be decided by the State Government or any authority under any of the provisions of the West Bengal Estates Acquisition Act.

Thus, the object of Clause (c) of Sub-section (2) is to exclude the Civil Courts jurisdiction in respect of the matters which come within the ambit of the enquiries provided for in the different parts of the West Bengal Estates Acquisition Act. Chapter VI of the West Bengal Estates Acquisition Act contains supplemental and miscellaneous provisions relating to such enquiries. Section 53 mentions the authorities for the purposes of the Act. u/s 54 the State Government may delegate powers except its rulemaking powers. The said section empowers the State Government to appoint Special Judges and Tribunals. Section 55A extended the Indian Limitation Act to appeals or applications under the Act. Section 56 confers powers upon the Revenue Officers to enter upon any land and make survey for carrying out any of their duties under the Act. Section 57 confers power to compel production of statements and documents and to enforce attendance of witnesses in the proceedings under the Act. The State Government u/s 57A may invest any authority referred to in Section 57 with all or any of the powers of a Civil Court under the Code of Civil Procedure, 1908. We understand that the State Government has already issued Notification No. 340L Reg. dated June 9, 1958, conferring all the powers of Civil Court under the CPC upon (i) all Settlement Officers, (ii) all Assistant Settlement Officers, (iii) all Compensation Officers and (iv) all Revenue Officers. Section 58 contains provisions for protection of actions taken under the Act etc

Obviously, Section 57B(2)(c) covers the different kinds of enquiries and proceedings which may be conducted by the authorities mentioned u/s 53. In this connection, we may give some illustrations of such enquiries contemplated under the Act: (a) enquiries u/s 5A regarding bona fide of transfers including consequential proceedings; (b) proceedings u/s 6 regarding retention of lands by intermediaries including raiyats etc. (c) assessment and payment of compensation under chap. 111 of the Act; (d) proceedings under chap. IV relating to mines and minerals, in particular, relating to preparation and publication of the Compensation Assessment Roll, reference to Mines Tribunal, appeals against orders of the Tribunal, etc., (e) preparation and revision of records of rights including disposal of objections and appeals. Clause (c) bars the Court''s jurisdiction only in respect of the field now covered by these enquiries. We may note that Clause (b) of Section 57B(2) confers questions relating to retention u/s 6.

If we closely examine these provisions relating to the different classes of enquiries under the Act, we would find no machinery provided for adjudication of disputes between private individuals relating to title and ancillary questions thereto. The enquiries under the Act all relate to or are connected with the questions of acquisition and vesting, rights of intermediaries and certain other persons, including right; of retention, assessment and payment of compensation and supplemental and miscellaneous provisions. When a particular suit does not in substance come within the scope of any of these matters, Civil Court''s jurisdiction to entertain suits of civil nature still remains unaffected. Recently, P.K. Banerjee J. in Ramkrishna Mullick and Ors. v. State of West Bengal and Ors. (1975) (1) C.L.J. 154 has elaborately discussed the scope and effect of Section 57B of the West Bengal Estates Acquisition Act. Banerjee J., in our view, rightly pointed out that in each case the Court should adjudicate whether the suit before it comes within the mischief of Section 57B(2). In these it is found that the suit comes within the ambit of the said provision, then the Court might pronounce that the suit should abate, otherwise the Court should proceed to try the suit in accordance with law.

In the instant case, the order of the learned Munsif does not indicate that the learned Munsif had applied his mind to the pleadings of the parties and issues involved. Accordingly, it would be necessary to remit the master to the trial Court with a direction to frame specific issue, if not already done, as to whether the present suit was liable to abate u/s 57B(2). The trial Court shall then determine the same by examining the averments in the plaint and the different reliefs prayed for. Before the said case regarding maintainability and abatement is taken up, it would be open to the Plaintiff to apply for amendment of his plaint.

We, accordingly, make this Rule absolute, set aside the order complained of. The learned Munsif is directed to proceed with the case in accordance with law. There will be no order as to costs.

S.K. Bhattacharyya, J.

I agree.