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1975 DIGILAW 297 (CAL)

Chapala Bala Adhikary v. Monoranjan Das

1975-09-23

CHITTATOSH MOOKERJEE

body1975
JUDGMENT Chapala Bala Adhikary who originally obtained the present Rule had instituted a suit against opposite party No. 1, Monoranjan Das, inter alia, for declaration, for confirmation of possession and for permanent injunction in respect of 1'20 acres of land in plot No. 388 of R.S. Khatian No. 2271 in Mouza Thuba. Her case inter alia what that one Harendranath Das who was a bargadar under her had executed a registered Esta-fanama in her favour on February, 23, 1959. Thereafter, she had been cultivating the land in question with the help of hired labourers who used to execute krishimajuri agreement each year in lieu of their remuneration. A portion of the suit land was described as a bamboo grove previously but the said grove was no longer in existence and the said portion was lying fallow. The defendant opposite-party had approached her for granting settlement was trying to disposses her from the suit land. 2. The learned Munsif, Second Court, Basirhat granted as ad interim injunction as prayed for by the plaintiff and issued a show cause notice upon the defendant. The defendant had entered into appearance and had filed a Written Statement in the suit, inter alia, claiming that he was a bargadar of the suit land. He had prayed before the trial court that the question whether he was a bargadar be referred under section 21(3) of the West Bengal Land Reforms Act to the Bhagchas officer concerned. The plaintiff had opposed the said prayer. The learned Munsif by his order dated 21st September, 1974 referred to the Authority under section 18(1), the question whether the defendant Motilal Das was a bargadar in respect of the suit land in question under the plaintiff Chapala Bala Adhikary. The learned Munsif stayed the further proceedings in the suit till the receipt of the decision of the authority under section 18 (1) of the said question. 3. On 25th April, 1975 Chapala Bala Adhikary obtained the present Rule. The operation of the above order of the learned Munsif was stayed till the disposal of the Rule but the opposite party submitted before me that the Bhagchas Officer had already passed his order determining the question referred to him by the learned Munsif in favour of the defendant. The correctness of the said decision of the Bhagchas Officer is not the subject mater of challenge in the present Rule. The correctness of the said decision of the Bhagchas Officer is not the subject mater of challenge in the present Rule. The only question is whether the learned Munsif had acted within his jurisdiction by making the above reference under section 21(3) for decision of the question whether the defendant was a bargadar or not. 4. The opposite-party No. 1 in his affidavit-in-opposition dated 28th August, 1975 disclosed that the learned Munsif, Second Court, Basirhat by his order date the 6th May, 1975 had expunged the name of Chapala Bala Adhikary from the plaint of Title No. 171 of 1974 and had added Srimati Sudharani Das, minor Chandrajit Das, minor Ira Das and minor Sarajit Das, minors being represented by their natural guardian father, Sri Kalidas Das as plaintiff’s in the said suit. The suit added plaintiff’s have been described as the transferees from Chapala Bala Adhikary. In the above view, the aforesaid vendees of Chapala Bala Adhikary have been added as petitioners in the present Rule. 5. The suit out of which this Rule arises was instituted before the enactment of the West Bengal Land Reforms Amendment Act, 1574 which received assent of the President and was published in the Extraordinary issue of the Calcutta Gazette, dated June 21, 1974. The section 7 of the said amending Act of 1974 by which sub-section (3) was inserted in section 21 did not expressly state that the sub-section (3) shall have retrospective effect. The first question in this Rule is whether the said sub-section (3) of section 21 would also apply to suits and proceedings instituted before the enactment of the West Bengal Land Reforms Amendment Act of 1974. This is turn raises the point whether sub-section (3) merely alters the procedure relating to suits and proceedings or effect vested substantive rights if litigants. 6. Mr. Taraknath Roy, learned Advocate for the appellant contended before me that the legislative by the inserting sub-section (3) in Section 21 has affected substantive right to institute suits and to proceed with the same. Thus the said provision deprives the right of a party to get redress in suit which involve the question whether a particular person is a bargadar or not. Secondly, it takes away the right of an aggrieved party to further challenge the adverse decision on the said question in the manner provided by the Civil Procedure Code. In this connection, Mr. Secondly, it takes away the right of an aggrieved party to further challenge the adverse decision on the said question in the manner provided by the Civil Procedure Code. In this connection, Mr. Roy strongly relied upon the observation of the Supreme Court in the case of (1) Garikapati Veeraya v. S. Subbiah Choudhury and others, reported in AIR 1957 SC 540 . Mr. Roy contended that the West Bengal Lands Reforms Amendment Act neither expressly nor by necessary intendment had taken away the legal pursuit of remedy in suits and appeals pending at the date of its commencement. 7. Mr. Arun Kumar Motilal who appeared as amicus curiae on the other hand submitted that the sub-section (3) of section 21 clearly disclosed the intendment that it would be applicable to all suits and proceedings whether instituted before or after the enactment of the amending Act of 1974. Mr. Matilal emphasized the use of the expression 'in-course of' which means 'in process of' (vide Shorter Oxford Dictionary, Volume I, 3rd. Ed., p. 410). The provisions of sub-section (3) of section 21 are attracted whenever the question arises whether a person is a bargadar or not. Therefore, the relevant point of time is not the date of commencement of the proceedings but the point of time when such a question comes up for determination. 8. In my view, this submission of Mr. Matilal should be upheld. The sub-section (3) uses the expression 'suits and proceedings' so as to include therein different kinds of civil and criminal legal actions. 'In course of' denotes the different stages or steps in suits and proceedings. The sub-section (3) of section 21 contemplates that whenever the question whether a person is a bargadar or not comes up for decision in course of a suit or proceeding the Court shall refer the question to the authorities mentioned in sub-section (1) of section 18 of the West Bengal Land Reforms Act. 9. Mr. Matilal had drawn my attention to 'Salmond On Jurisprudence', 12th Edition, page 461. Salmond defines 'The Law of Procedure' as 'that breach of law which governs the process of litigation. It is the law of actions. jus quod ad actions pertinent–using the term action in a wide sence to include all legal proceedings, civil or criminal... 9. Mr. Matilal had drawn my attention to 'Salmond On Jurisprudence', 12th Edition, page 461. Salmond defines 'The Law of Procedure' as 'that breach of law which governs the process of litigation. It is the law of actions. jus quod ad actions pertinent–using the term action in a wide sence to include all legal proceedings, civil or criminal... Substantive law is concerned with the ends which the administration of justice seeks ; procedural law deals with the means and instruments by which those ends are to be attained.' Mr. Matilal submitted before me that sub-section (3) of section 21 does not take away the right to have the remedy but it changes the forum for decision of the question whether a persons is a bargadar or not. 10. In the above view, it is not necessary for me to pronounce whether or not the sub-section (3) affects any substantive rights. The sub-section (3) of section 21 by necessary implication is applicable not only to suits and proceedings which might be commenced after the enactment of the West Bengal Land Reforms Amendment Act, 1974 but also to suits and proceeding pending at the date of the commencement of the said amending Act. The section clearly shows such an intendment to apply sub-section (3) whenever the question whether a person is a bargadar or not arises. The legislature having, manifested such an intention the sub-section (3) would operate also in respect of pending proceedings. In this connection, see (2) Monomohan Moitra v. Gobinda Das Chowdhury, 55 CWN 6 ; (3) Loke Nath Mukherjee v. Subassona Sadhukhan, 63 CWN 812 ; (4) Mukunda Das Nandy and others v. Bidhan Chandra Roy and others, 63 CWN 834. 11. The wordings of sub-section (3) of section 21 are really similar to those in section 9(2) of the Citizenship Act, 1955. The sub-section (2) of section 9 of the Citizenship Act, 1955 enacts that "if any question arises as to whether, when or how any person has acquired the citizenship of another country it shall be determined by such authority, in such manner, in having regard to such rules and facts as may be prescribed in this behalf" The Rule 30(2) of the Citizenship Rules, 1956 provides for enquiry by the Central Government. The Supreme Court in (5) Akbar Khan Alam Khan and another v. Union of India and others, reported in AIR 1962 SC 70 pointed out that he only question, however, which a civil court is prevented by section 9 (2) from determining is the question whether a citizen of India has acquired citizenship of another country or when or how he acquired it. The civil courts are not prevented by this provision from determining other questions concerning nationality of a person. Where a person's claim to the citizenship of India was resisted on the ground that having migrated to Pakistan in 1943 he never acquired Indian Citizenship. The jurisdiction of a civil court to decide that question is not in any way affected by Section 9(2) of the Citizenship Act. Therefore, in such a case the entire suit should not be dismissed. The Court should decide the question whether the person had never been Indian citizen. If that question is answered in the affirmative, then no further question would arise and the suit would have to be dismissed. If it was found that the person had been on January 26, 1950, Indian citizen, then only the question whether he had renounced that citizenship and acquired a foreign Citizenship for the Court would then have to stay the suit till the Central Government decided the question whether the person had renounced his Indian Citizenship and acquired a foreign citizenship and then dispose of the suit in such manner as the decision of the Central Government may justify." 12. By applying the same reasoning in the construction of sub-section (3) of section 21, I hold that the Court is debarred from deciding the question whether a person is or is not a bargadar but the Court has not been denuded of its powers to decide other questions and issues involved in a suit or proceeding. The sub-section (3) of section 21 thus only partially affects the jurisdiction of the Civil and Criminal Courts in suits and proceedings in so far as the question mentioned in sub-section (3) is concerned. The jurisdiction of the Courts to decide the other issues or questions, if any, in suits or proceedings has not been affected. The sub-section (3) of section 21 thus only partially affects the jurisdiction of the Civil and Criminal Courts in suits and proceedings in so far as the question mentioned in sub-section (3) is concerned. The jurisdiction of the Courts to decide the other issues or questions, if any, in suits or proceedings has not been affected. The West Bengal Land Reforms Amendment Act, 1974, inserted the words 'otherwise' in sub-section (2) of section 18 of the West Bengal Land Reforms Act after the words 'referred to in sub-section (1)". Several decisions of this Court have considered the scope of unamended sub-section (2) of section 18. Before insertion of the word otherwise' the jurisdiction of the Officer or Authority mentioned in sub-section (1) of section 18 to decide the question whether a person was a bargadar or not and to whom the share of the produce was deliverable was conditional or dependent upon existence of a dispute referred to in sub-section (1). The authority or officer in deciding such a dispute under sub-section (1) could incidentally determine the question whether a person was a bargadar or not. See the decisions of this Court in the cases of (6) Jadu Nath Roy and others v. Lal Mohan Malik and others, 66 CWN 88 ; (7) Sarat Chandra Panda and others v. Sk. Amin Ali and others, 66 CWN 229; (8) Kalipada Naskar and others v. Moni Mohan Naskar, 67 CWN 1076. The word 'otherwise' has been inserted in section 18 to confer jurisdiction upon the officers or authorities to decide the question whether a person is a bargadar or not and to whom the share of produce is deliverable even in the absence of any dispute referred to in sub-section (1). After the said amendment in sub-section (2) even if such a question arises in any other different way the officers or authorities under sub-section (1) of section 18 can assume jurisdiction under sub-section (2) and determine the question. But the amplitude or the extent of their jurisdiction is still limited to decision on the question whether a person is a bargadar. A Court under section 21 (3) can refer only those questions which come within the scope of a decision under sub-section (2) of section 18. But the amplitude or the extent of their jurisdiction is still limited to decision on the question whether a person is a bargadar. A Court under section 21 (3) can refer only those questions which come within the scope of a decision under sub-section (2) of section 18. In other words, the Court can only refer under sub-section (3) of section 21 those questions which the authorities or officers mentioned in sub-section (1) of section 18 have jurisdiction under sub-section (2) to determine. Thus section 18 (2) which is complementary to the section 21 (3) indicates the scope of the said sub-section (3). I have already observed that these officers and authorities under section 18 (2) can only adjudicate whether a person is a bargadar or not. Such officers or authorities have no jurisdiction to decide other matters of civil dispute, e. g. claims of tenancy, license, trespass, prescriptive rights, etc. 13. Thus the Court under section 21 (3) can refer to the officers or authorities mentioned in sub-section (1) of section 18 only such questions which come within the ambit of determination under section 18 (2). When a suit is brought for establishing that a particular person is a bargadar or for a declaration that a particular person is not a bargadar the, sub-section (3) of section 21 would be clearly attracted and the Court could be bound to refer the said question of status to the officer or authority mentioned in sub-section (1) to Section 18. On the other hand when a suit is brought for a declaration of any other kind of legal status or Character, ownership, tenancy, trespass or license, etc. I am unable to hold that the civil court would be bound to make a reference in terms of sub-section (3) of section 21 merely because of one of the parties in such a suit or proceeding takes up the defence that he is not a trespasser or a licensee but a bargadar. When a suit is brought for establishing that the defendant is a trespasser or a licensee, the issue before the Court is whether or not the person concerned is a trespasser or licensee. When a suit is brought for establishing that the defendant is a trespasser or a licensee, the issue before the Court is whether or not the person concerned is a trespasser or licensee. In such a suit the plaintiff has to establish his case that the defendant is a trespasser or licensee and if he succeeds in proving the fact alleged by him his suit would succeed, but in case he fails to prove the case pleaded by him then his suit must be dismissed. The Court is to only incidentally consider the case pleaded by the defendant in rebuttal of the plaintiff's case of ownership, trespass or license, even if the Court finds that a particular person is not a trespasser or licensee it need not necessarily come to any clear finding regarding the defendant's claim of bargadar's status. The Court need not finally pronounce on the truth or otherwise of the defendant's case. The parties might be relegated to agitate the question of barga right in proceedings under section 18 (1) read with section 18 (2) of the West Bengal Land Reforms Act. 14. We may further examine the scope of sub-section (3) of section 21 in the context of suits and proceedings in civil court. The sub-section (3) provides that if the question as to whether a person is a bargadar or not arises it shall be referred to the officer or authority mentioned in 18 (1) for decision. In my view the expression "any question...arises" means that the said question comes up for decision or determination in civil or criminal proceedings. In the present context 'arise' means 'to present itself for decision'. In a civil proceeding when a material proposition of fact or law is affirmed by one party and denied by the other, the Court has to frame issue and determine the same. The word 'question' under section 21 (3) has a meaning akin to the expression 'issue'. According to Shorter Oxford Dictionary, Volume II, 3rd Edition, one of the meanings of the expression 'question' 'is the action of inquiring or asking ; the stating or investigation of a problem ; enquiry into a matter ; discussion of some doubtful point.' 15. The Shorter Oxford Dictionary also notes that the term 'question' as a verb also means 'to examine judicially'. The Shorter Oxford Dictionary also notes that the term 'question' as a verb also means 'to examine judicially'. Thus section 21 (3) would be applicable only when for disposal of a suit or proceeding it would be necessary to decide the question whether a person is a bargadar or not. When an issue in this behalf is presented before or comes up for decision in a civil or criminal proceeding, the Court is required to refer it to the officer or authority mentioned in section 18 (1). 16. Thus the applicability or otherwise of section 21 (3) would depend upon the frame of the suit, the relief prayed and the issues involved Section 21(3) is attracted only when the question of barga right directly arises and not merely by implication. There may be also cases where the officers or authorities under section 18(1) had already finally adjudicated the question whether a person was a bargadar or not. In that event any question within the meaning of section 21(3) cannot again arise in a subsequently instituted suit or proceeding in civil or criminal court, between the same parties or their successors. I have already mentioned that in the context of section 21(3) the expression 'question arises' means when parties join issue, i. e., question in controversy and this expression 'question' under section 21(2) bears nearly the same meaning as 'issue' within the meaning of Order 14, Rule (1) of the Civil Procedure Code. Therefore, when the question of applicability of sub-section (3) is raised the court should examine the pleadings and consider the issues which arises for decision in the suit. Thus it would be convenient to frame issues and then to consider whether any question as contemplated under section 21(3) arise for determination or decision. In case the answer is in the affirmative the court should refer the said question to the authority or officer mentioned in sub-section (1) of section 18. The Court would adjourn the suit or proceeding or try the remaining issues as may be appropriate and convenient in the facts and circumstances of a particular case or proceeding. Even if the question contemplated by sub-section (3) of section 21 arises in a suit or proceeding, the Court is not powerless to grant interlocutory orders in such suit or proceeding. Even if the question contemplated by sub-section (3) of section 21 arises in a suit or proceeding, the Court is not powerless to grant interlocutory orders in such suit or proceeding. The sub-section (3) requires that the authority or officer mentioned in sub-section (1) shall decide the question whether the person concerned is a bargadar or not even when the said 'question arises' in any suit or proceeding before any civil or criminal court. Chapter III of the West Bengal Land Reforms Act 1956, however, does not empower the officer and authorities mentioned in section 18(1) to pass interlocutory orders. Secondly we have already mentioned that under sub-section (3) of section 21 only decision of an issue is to be referred to the officer or authority under section 18(1). Therefore, the Court retains jurisdiction to try the remaining issues in the suit and to exercise all powers of a civil court in relation to such a suit except the determination of the issue or question whether a person is a bargadar or not. 17. Sub-section (3) of section 21 provides for a reference of the question whether a person is a bargadar or not to the officer or authority mentioned in section 18(1) but neither the West Bengal Land Reforms Act nor the Rules prescribed under the Act lay down the detailed procedure for determination of the said question. Section 20(1) lays down that the procedure to be followed in deciding disputes or appeals under Chapter III and the fees to be paid by the parties shall be as may be prescribed. Nothing was placed before me to establish that uptil now Rules have been prescribed for disposal of the question referred under sub-section (3) of section 21. The Rule 6 of the West Bengal Land Reforms Bargadar Rules, 1965 which prescribe the manner of making an application for decision in respect of the matters referred to in sub-section (1) of section 18 is not appropriate in the context of section 21(3). The officers or authorities in determining the question referred to them under section 21 (3) undoubtedly exercise quasi-judicial powers. Therefore they are bound to act in consonance with the fundamental principles of justice. The officers or authorities in determining the question referred to them under section 21 (3) undoubtedly exercise quasi-judicial powers. Therefore they are bound to act in consonance with the fundamental principles of justice. The authorities are required to give opportunity of hearing to both parties, record evidence if adduced by the parties and to decide the question fairly, impartially and objectively i. e. in the manner a tribunal or a quasi-judicial body acts. Sub-section (1) of sec. 19 provides for appeal against any order made under section 17 or section 18 except where an order is made with the consent of the parties to the dispute. The officer or authority mentioned in sub-section (1) of section 18 in determining a question referred under sub-section (3) of section 21 exercises his, power under section 18(2). Therefore a determination of the question under section 21(3) read with section 18(2) would be appealable. The West Bengal Land Reforms Act has not also laid down the procedure to be adopted by the civil or the criminal Courts after the authorities or officers under sub-section (1) of section 18 determine the question referred to them under section 21 (3). But, the sub-section (1) of section 21 would be applicable also in respect of a determination of a question referred under section 21(3). Under sub-section (1) of section 21 no order or other proceeding whatsoever made under Chapter III can be questioned in any civil court and no civil court can entertain any suit or proceeding in respect of any matter mentioned in sections 17 and 18. Accordingly a determination of the question referred in section 21(3) cannot be questioned before the court which had referred the question. After receipt of the finding on the question whether person is a bargadar or not, the court will proceed to determine remaining issues if and then to finally dispose of the suit in accordance with law. In this context I need not deal with the ambit of the powers of this Court under Article 226 or 227 of the Constitution. We need not also consider in this case the extent of the jurisdiction of the Civil Court to entertam a separate suit challenging an order under section 18 (2) read with section 21(3) which was null and void or which was passed in total disregard of the fundamental principles of justice. 18. We need not also consider in this case the extent of the jurisdiction of the Civil Court to entertam a separate suit challenging an order under section 18 (2) read with section 21(3) which was null and void or which was passed in total disregard of the fundamental principles of justice. 18. We may now proceed to examine the question whether the [wit brought by the plaintiff-petitioner raised any question whether the defendant opposite-party is a bargadar or not. The plaintiff averred in paragraph 2 of the plaint that 1'20 acres in Dag No. 388 was in her khas possession and Harendra Nath Das previously used to bhag cultivate the said land. The plaintiff averred in paragraph 3 that Barendra Nath Das having failed to deliver owner's share of produce of this land, the plaintiff had filed a case in the Bhagchas Office for recovery of the owner's share of the produce. But even then the plaintiff did not receive her share. The plaintiff averred in paragraph 4 of the plaint that the said previous Bhagchasi approached the plaintiff and executed a registered Estafonama and the plaintiff accepted the said surrender. Harendra Nath Das because of illness and old-age became disabled. On 11th Falgun, 1365 corresponding to 23rd February, 1959, be had executed a Kabuliat to the effect that he would not enter into the suit land. The plaintiff claimed in paragraph 6 that he would not enter into the suit land. The plaintiff claimed in paragraph 6 that the by engaging third party as hired labourers had been cultivating in khas the suit land. She has mentioned in paragraph 7 about written agreements between herself and her said hired labourers. According to the plaintiff the defendant Lalit had approached her for taking the settlement of a portion of the suit land which was previously a bamboo grove but was lying fallow. The defendant had been holding out the threat to disposses the plaintiff while in paragraph 8 to 11 of the plaint the plaintiff has prayed that her title and possession in the suit property be declared and that the defendant had no right or interest in the said property. And she has also prayed for confirmation of possession and for permanent injunction to restrain the defendant from dispossessing her. 19. And she has also prayed for confirmation of possession and for permanent injunction to restrain the defendant from dispossessing her. 19. The defendant's case is that his brother was previously the recorded bargadar in respect of the suit land and since 1367 he had been possessing by cultivating the suit land as a bargadar. According to the learned Munsif the main question which would come up for decision in the case was whether the defendant was a bargadar or not having regard to the nature of the pleadings of the parties. In my view, the learned Munsif was correct in holding that in the instant case the sub-section (3) of section 21 was attracted and therefore the said question should be referred to the officer or authority mentioned in sub-section (1) of Section 18. 20. Accordingly, this Rule should fail. I make it clear that it is not within the scope of this Rule to consider whether the adjudication by the Bhagchas Officer of the said question was in accordance with law and this Order will be without prejudice to the rights and contentions of the parties in any proceeding in which the said Order under Section 21 (3) read with Section 18 (2) may be questioned. Subject to these observations, I discharge the Rule. There will be no order as to costs.