Renuka Dey Chowdhury v. Dharam Chand Sarda — 1978 DIGILAW 374 (CAL)

JUDGMENT This appeal arises at the instance of the defendants out of the judgment and decree passed by Additional Subordinate Judge, Balurghat in O.C. Appeal No. 33 of 1962 affirming the judgment and decree passed by the learned Munsif, Balurghat in O C. Suit No. 178 of 1960. 2. The plaintiffs respondents instituted the said O.C. Suit No. 178 of 1960 for a declaration that the award made by the Debt Settlement Board at Tapan in Case No. 54/6 of 1943 under section 37A of the Bengal Agricultural Debtors Act was void and inoperative. There was further prayer for declaration of plaintiffs' title to the suit properties and for recovery of possession thereof if-it was found by the Court that symbolic possession had been taken by the defendants and such symbolic possession had amounted to dispossession of the plaintiffs. There was also prayer for permanent injunction restraining the defendants from realising rents from the tenants to the extetnt of 10 annas 8 pies share. The facts of the case may be stated in short as follows:- 3. The putni rents in respect of touzi No. 894 of Dinajpur Collectorate fell in arrears as a result of which there was a Rent Suit being Kent Suit No.1 of 1938 of the Court of the learned Subordinate Judge, Dinajpur. The l1aid suit was decreed and the decree was put into execution in Rent Execution case No. 111 of 1936. The properties in question were auction purchased by the decree- holder on 9-2-1937 and delivery of possession thereof was also obtained by the said decree-holder through Court. The Touzi was thereafter sold at a Revenue sale in Case No. 16/19 of 1938-39 and was auction put-chased by Meghraj Sarda at a Revenue sale which took effect on June 29, 1938. Thereafter Meghraj sold the properties to the plain tiffs by registered kobala dated 21st July, 1939 and the plaintiffs came in possession thereof. Sometime thereafter the defendants applied to the Debt Settlement Board, Tapan under section 37A of the Bengal Agricultural Debtors Act in Case No. 54/6 of 1943 of that court. The said Board rave an award and on the basis the said award the sale held in the aforesaid Rent Execution Case was set aside by the Court of the Subordinate Judge, Dinajpur. The said Board rave an award and on the basis the said award the sale held in the aforesaid Rent Execution Case was set aside by the Court of the Subordinate Judge, Dinajpur. The defendants thereupon obtained possession of 8 annas 8 pies which was of the putni interest in respect of the touzi in question through Court on 21st January, 1950. The plaintiffs contended that the said award by the Tapan Debt Settlement Board was void and inoperative and as aforesaid the said suit was instituted for the aforesaid declaration and for permanent injunction. 4. The said suit was contested by the defendants by filing joint written statement, inter alia, denying the material averments in the plaint. It was contended inter alia by the defendants that the award in question by Tapan Debt Settlement Board was not invalid and that the auction purchaser in the Rent Execution case in question and Meghraj Sarda, the auction purchaser at the Revenue Sale- in question were only the benamdars of the plaintiffs. It was also alleged that the suit is barred by resjudicata and limitation and that the Court had no jurisdiction to declare the award in question as void and inoperative. 5. It may be stated in this connection that the suit was originally heard by the learned Subordinate Judge and the said suit was dismissed on the finding that the Civil Court had no jurisdiction to set aside the award passed by the Debt Settlement Board and against the said judgment and decree of the learned Subordinate Judge, an appeal was preferred before the learned District Judge and on appeal the judgment and decree passed by the trial court was set aside and the suit was sent back for disposal on merits. Subsequently the pecuniary jurisdiction of the learned Munsif was raised and accordingly the suit was transferred in the Court of the learned Munsif for disposal and the said suit was decreed by the learned Munsif on the finding that the putni and darputni interests in question had merged in the superior zamindary interest and as such there was no separate existence of putni and darputni in question at the relevant time when the sale took place, as a remit of which, there was no question of annulment of encumbrance under section 37 of the Revenue Sales Act. Against the said judgment and decree, an appeal, being O.C. Appeal No. 33 of 1962 of the Court of the Additional Subordinate Judge, West Dinajpur at Balurghat was preferred. It is to be noted in this connection that along with O.C. Appeal No. 33 of 1962, Rent Appeal No. 13 of 1955 arising out of Rent Suit No. 614 of 1954 was also taken up for hearing. The Rent Suit No. 614 of 1954 was brought by the defendants against the sub-tenants after they had obtained symbolical possession through Court in execution of the award of the Debt Settlement Board. The learned Subordinate Judge came to the finding that the award in question was void and the order of delivery of possession in favour of the defendants was also not quite proper and as such the defendants did not acquire any interest in the property by virtue of the award passed by the Debt Settlement Board. Consequently it was held by the Subordinate Judge that the defendants were not competent to sue the sub-tenants for arrears of rent and the decree passed in Rent Suit No. 614 of 1954 in favour of the defendants was not maintainable in law and should be set aside without entering into the merits. On such finding, the learned Subordinate Judge dismissed the said O.C. Appeal No. 33 of 1962 and allowed the Rent Appeal No. 13 of 1955 The instant appeal before this Court Was preferred by the defendants against the judgment and decree passed in the said O.C. Appeal No. 33 of 1962 affirming the judgment and decree passed in O.C. Suit No. 38 of 1960. 6. Mr. Ghosh Chowdhury, the learned Counsel appearing, for the appellants contended that the Civil Court had no jurisdiction to enter into the question of validity or legality of the award of the Debt Settlement Board in question. It was contended by Mr. Ghosh Chowdhury that the Debt Settlement Board being a Tribunal constituted under the Bengal Agricultural Debtors Act, within the scope and ambit of its jurisdiction had made a finding both in respect of the merits of the proceeding before it and also in respect of the maintainability of the Debt Settlement proceeding and on such finding both in respect of the merits and also in respect of the maintainability of the proceeding, passed the impugned award. The plaintiffs not having availed of the provisions of lip peal and revision under sections 40 and 40A of the Bengal Agricultural Debtors Act, the finding made by the Debt Settlement Board became final and the tribunal having acted within the scope and ambit of its special jurisdiction, the Civil Court had no authority to go into the question of correctness and validity of the said award. Mr. Ghosh Chowdhury also contended that there was no inherent lack of jurisdiction in the instant case so far as the Tapan Debt Settlement Board is concerned. There was also no erroneous assumption of jurisdiction by the said Debt Settlement Board. Even assuming that an erroneous finding was made by the Debt Settlement Board on wrong appreciation of the facts of the case, such erroneous finding could have been rectified by taking recourse to appellate and/or revisional provisions of the Act as stated hereinbefore and such action not having been taken, the error in fact, if any, though lamentable, cannot be rectified by the Civil Court. Mr. Ghosh Chowdhury for this proposition referred to a number of decisions viz. the decision wade in the case of (1) Jnanendra Narayan Singh v. Momena Khatoon, reported in 58 CWN 925, the decision made in the case of (2) Sm. Krishnamoni Dasi v. Baser Mandal, reported in AIR 1963 Calcutta, page 225 (FB) and the decision made in the case of (3) Malkarjun Bin Shidramappa v. Narhari Bin Shivappa, reported in 27 Indian Appeal 216. Mr. Ghosh Chowdhury next contented that there was no merger of putni or darputni interest with the zamindary interest. It was contended that the zamindary interest of 1 anna 3 gandas 1 kada 1 kranti did not merge with tae putni interest. It was contended by him that under the law of merger the entire lesser interest must merge with the greater interest or in other words, there shall be no existence of lesser interest after merger. Reference to section 111 (d) of the Transfer of Property Act was made in this connection by Mr. Ghosh Chowdhury. He also referred to the decision made in the case of (4) Sk. Fakir Bakshi v. Muralidhar, reported in AIR 1931 Privy Council page 63 for this proposition. Mr. Reference to section 111 (d) of the Transfer of Property Act was made in this connection by Mr. Ghosh Chowdhury. He also referred to the decision made in the case of (4) Sk. Fakir Bakshi v. Muralidhar, reported in AIR 1931 Privy Council page 63 for this proposition. Mr. Ghosh Chowdhury also contended that unlike Bengal Tenancy Act, under the provisions of section 37 of the Bengal Revenue Sales Act, even after revenue sale an undertenure subsists unless such undertenure is annuled and reference was made by Mr. Ghosh Chowdhury for this proposition to the decision made in the case of (5) Turner Morrison & Co. v. Monmohan Chowdhury, reported in 37 CWN page 29. Mr. Ghosh Chowdhury contended that in the facts and circumstances of the case, there could not be any merger in law and the undertenure interest in question also subsisted. Accordingly the provisions of section 37 A of the Bengal Agricultural Debtors Act were applicable in the facts and circumstances of the case. Mr. Ghosh Chowdhury further contended that the record of rights had no foundation and in any event, the record of rights dose not establish any title to the property in question but tae record of rights is only a proof of , title by possession. Mr. Ghosh Chowdhury contended that it would appear from the award of the Tapan Debt Settlement Board that the Board came to the finding that on the basis of the papers produced by the debtor, it transpired that the dispute was triable under section 37 A of the Bengal Agricultural Debtors Act. Mr. Ghosh Chowdhury contended that although elaborate reasonings were not given for the said finding but as the said Debt Settlement Board came to the finding that section 37 A of the Bengal Agricultural Debtors Act was applicable in the facts of the case, it would but be held that the Board had also decided about the maintainability of the proceeding. 7. Mr. Dasgupta the learned Council appearing for the respondents however, contended that as Meghraj Sarda purchased the touzi at revenue sale, he held the interest of the Crown subject to the payment of revenue but he did-not held the interest of a tenant or the interest of the decree-holder. For this proposition, Mr. 7. Mr. Dasgupta the learned Council appearing for the respondents however, contended that as Meghraj Sarda purchased the touzi at revenue sale, he held the interest of the Crown subject to the payment of revenue but he did-not held the interest of a tenant or the interest of the decree-holder. For this proposition, Mr. Dasgupta referred to a decision of this Court made in the case of (6) Maharaja Surya Kanta Acharya Bahadur v. Saral Chandra Roy Chowdhury, reported in 20 CLJ., page 563, Mr. Dasgupta further contended that in the special facts and circumstances of the case it should be noted that Ibrahim Chowdhury held 14 annas 6 gaddas 2 karas 2 krantis share of zamindary interest and the balance of interest was held by Rajani, Madhuri, Narayan and others, It was only Ibrahim who gave putni interest to Rajani, Madhuri and Ramendra and such putni 1nterest was sold to the plaintiffs. Thereafter Ibrahim Chowdhury filed Rent Suit No.1 of 1933 of the Court of the Subordinate Judge, West Dinajpur against putnidars and obtained a decree. The said Ibrahim Chowdhury thereafter sold his maliki right and also the interest obtained by the decree to one Ram Kishan Rador. The said Ram Kishan filed Rent Execution Case No. 111 of 1936 and as purchaser in auction the putni and darputni interest, Ram Kishan also took delivery of possession of such interest through Court. Thereafter, the entire touzi was put to revenue sale for default of payment of revenue find on 24th September, 1938 Meghraj Sarda purchased the touzi at revenue sale and in December 19, 1938, Meghraj Sarda took delivery of possession through Court. The plaintiffs purchased their interest from Meghruj Sarda vide Ext. 1. Rajani and others thereafter filed applications under section 37 A of the Bengal Agricultural Debtors Act for setting aside the rent sale to the extent of 10 annas and old shares. Mr. Dasgupta contended that the relevant date under section 37A of the Bengal Agricultural Debtors Act was December 20, 1939. Accordingly in the facts as stated hereinbefore, it is quite clear that prior to such relevant date the entire putni and darputni interests which were granted by Ibrahim Chowdhury merged with the Zamindary interest and as such it cannot be contended that there was no merger. Mr. Accordingly in the facts as stated hereinbefore, it is quite clear that prior to such relevant date the entire putni and darputni interests which were granted by Ibrahim Chowdhury merged with the Zamindary interest and as such it cannot be contended that there was no merger. Mr. Dasgupta further contended that in the aforesaid facts and circumstances of the case it is also quite evident that on the date of the application under section 37 A of the Bengal Agricultural Debtors Act the applicants i.e. Rajani and ors., had no subsisting interest which, as a matter of fact, had merged and by virtue of the purchase at a revenue sale, Meghraj Sarda obtained a valid title to the property and he also obtained possession through Court. Accordingly, Mr. Dasgupta contended that the proceeding under section 37 A of the Bengal Agricultural Debtors Act was not maintainable. 8. Mr. Dasgupta contended that under the provisions of subsection (2) of Section 37 A of the Bengal Agricultural Debtors Act, the Debt Settlement Board was under an obligation to determine as to whether conditions specified under section 37 A(1) are fulfilled or not. Mr. Dasgupta contended that this is a mandatory provision and the Board is bound to determine it explicitly and in clear term. Mr. Dasgupta contended that a mere omnibus and bald statement that the dispute was triable under section 37 A by the Debt Settlement Board cannot be held as compliance of provisions of section 37 A(2). Mr. Dasgupta contended that if the tribunal fails to act in accordance with the provisions of the Act by which the tribunal gets jurisdiction and power, it is always open to the Civil Court to look into the: question as to whether the tribunal had acted within its power or whether the tribunal had over steped its limits. Mr. Dugupta contended that in the instant cast, the Debt Settlement, Board failed to determine the conditions specified in section 37 A(1) as required to be done under section 37 A(2). The tribunal had therefore clearly acted illegally and without jurisdiction and as such the award of the tribunal can be lawfully questioned by the Civil Court and the Civil Court was also quite competent to hold that the finding of the tribunal was illegal and without jurisdiction. Mr. Dasgupta also referred to the Full Bench decision made in the case of Sm. Mr. Dasgupta also referred to the Full Bench decision made in the case of Sm. Krishnamoni Dasi (Supra) and referred to the decision of Laik J. It was held by Laik J. in the said decision that it is for the Courts of general civil jurisdiction to determine what is the scope or the authority given to a statutory tribunal and to investigate the question as to whether a special or subordinate tribunal has acted within the limits of its jurisdiction. Even where jurisdiction is given to the statutory tribunal to determine certain facts so as to give itself jurisdiction, it will be for the Court of general jurisdiction to adjudicate as to what are the powers which the statute has given to such an authority or tribunal. Mr. Dasgupta contended that in the aforesaid facts and circumstances, it was quite clear that the conditions specified in section 37 A(1) were not fulfilled the Debt Settlement Board though under an obligation to make a positive finding in that regard failed to do so and as such the award of the Board was illegal and without jurisdiction and the Civil Court rightly decided that the award of the Debt Settlement Board was void. Mr. Dasgupta contended that the question of taking appeal or revision under section 40 or 40A did not arise in the present facts and circumstances of the case inasmuch as it is not the case of the plaintiff that the tribunal had acted within the scope and ambit of its jurisdiction but while acting within such scope and ambit of its jurisdiction, it had made some erroneus findings. Mr. Dasgupta contended that without determining as to whether the condition specified in section 37A(1) were fulfilled or not, the tribunal had no authority to proceed in the matter and the tribunal having proceeded without such determination the adjudication of the tribunal must fail on the face of it. Mr. Dasgupta also contended that as a matter of fact the conditions specified in section 37 A(1) were also not fulfilled and as such the tribunal could not assume any jurisdiction in the matter. Mr. Dasgupta further contended that the putni or darputni interest in its entirety had merged because such putni and darputni interests were created only by Ibrahim Chowdhury to the extent of his share in the zamindary interest. 9. In my view, the contention made by Mr. Mr. Dasgupta further contended that the putni or darputni interest in its entirety had merged because such putni and darputni interests were created only by Ibrahim Chowdhury to the extent of his share in the zamindary interest. 9. In my view, the contention made by Mr. Dasgupta are of substance and I am inclined to accept the same, I am of the view that Tapan Debt Settlement Board failed to act in accordance with the provisions of section 37 A of the Act and the omnibus bald statement by the Debt Settlement Board that the dispute was triable under section 37A of the Act was not sufficient to warrant that the Debt Settlement Board had really taken into consideration the question as to whether the conditions specified in section 37 A (1) were fulfilled or not. It is als6 to be rioted that a judicial and/or quasi-judicial as tribunal is under an obligation to give reason for its decision and in any event a bald statement that the dispute is triable under section 37 A without giving any reason therefor cannot be held to be compliance with the provisions of the Act and/or proper discharge of judical and/or quasi judicial functions of a tribunal. I am also of the view that the Civil Court has jurisdiction to go into the question as to whether a particular tribunal had acted within the scope and ambit of its jurisdiction and whether it had determined certain facts in accordance with the provisions of the Act by determination of which it gets jurisdiction to adjudicate a dispute referred to the tribunal. Accordingly, the appeal fails and the judgment and decree of the Court of Appeal below is affirmed but in the facts and circumstances of the case, I make no order as to cost.