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1993 DIGILAW 133 (CAL)

Kanailal Das v. Khagesh Chandra Chakraborty

1993-03-22

Siba Prasad Rajkhowa

body1993
Order This revisional application is directed against Order No. 56 dated 1st September, 1990 passed by the learned Munsif, Second Court at Burdwan in Misc. Case No. 37 of 1984 arising out of an application under S. 47 read with section 151 of the Code of Civil Procedure filed in the Title Execution Case No. 11 of 1983 arising out of Title Suit No. 135 of 1967. 2. Plaintiffs, Gopal Chandra Chakraborty and others, filed Title Suit No.135 of 1967 in the Court of the Second Munsif at Burdwan for recovery of khas possession of the suit property as described in the 'kas' schedule to the plaint by ejecting the defendant, Kanialal Das, who is a non-agricultural tenant in the suit property and for other reliefs. The defendant contested the suit by setting up various pleas. 3. The learned Munsif in his judgment dated 29th September, 1960 has observed that the following are the admitted facts:- (1) The property of 'Ka' schedule as annexed to the plaint measuring an area of 1.31 acres within Burdwan Municipality appertaining to a jama of Rs.10.13.9 pies under Maharaj Kumar Udaychand Mahatab belonged to one Bhabatarini Devi the predecessor-in-interest of the present plaintiffs. (2) The said property is the homstead of the plaintiffs and their predecessor comprising the two storied pucca house with adjoining tank and bagan. (3) The property of 'Kha' schedule which is the subject matter of dispute is part and parcel of 'Ka' schedule and was let out to the defendant at an annual rental of Rs.240/- payable in 12 monthly instalments at the rate of Rs.20 per month. (4) The disputed tenancy is governed by the West Bengal Non-agricultural Tenancy Act, 1949. (5) Bhabatarini Devi, the predecessor-in-interest of the plaintiffs, served a notice in September, 1962 upon the defendant terminating the tenancy calling upon him to quit and vacate the suit premises on the expiry of the month of March, 1963 and filed Title Suit No. 271 of 1959 in the Court of the Second Munsif at Burdwan for the ejectment of the defendant and for damages for unauthorised use and occupation. In that suit an ad-interim injunction order was passed but it was subsequently vacated upon finding that the two permanent structures were already there since before the institution of the suit. In that suit an ad-interim injunction order was passed but it was subsequently vacated upon finding that the two permanent structures were already there since before the institution of the suit. (6) There was a written but unregistered bilateral agreement (Ext.1), purporting to create a lease of the suit land for 5 years commencing from 1st April, 1956 valid upon 31st March, 1961. As the Ext. 1 was not registered, the lease was valid only for the first year upto 31st March, 1957. But even thereafter the defendant was continuing in possession and the plaintiffs used to accept rent upto March, 1961. It was therefore a tenancy by holding over upto March, 1961. 4. On the basis of the admitted facts and on the basis of the evidence brought on record, the learned Munsif came to the following findings:- (1) The defendant has not acquired a non-ejectment tenancy right and so he is not entitled to the benefit of Section 7, sub-section (5) of the West Bengal Non-Agricultural Tenancy Act. (2) Under S. 6(3) of the said Act, the defendant was not entitled to raise pucca structure in view of the provisions contained in Section 9 of the Act. If the defendant raised pucca structure, he did it at his own risk. (3) The defendant is liable to be ejected as per provision of Section 9(1)(h) of the said Act on proof of termination of the tenancy by six months' notice in writing expiring with the end of the year of a tenancy as provided in sub-clause (iii) of clause (c) of Section 9(1) of the said Act. (4) Rejecting the defence argument that the status of Bhabatarini Devi was that of a non-agricultural intermediary and that she had no right to terminate the tenancy of the defendant as her rent receiving interest vested in the State with effect from 1st Baisakh, 1362 B.S. and therefore• the State alone was competent to terminate the tenancy, the learned Munsif held that the status of the landlord Maharaja of Burdwan was that of an intermediary and his interest and not the interest of Bhabatarini Devi vested in the estate with effect from 1st Baisakh, 1362 B.S. The raiyats will be deemed to be statutory intermediaries under S. 52 of the West Bengal Estates Acquisition Act, 1953. The status of non-agricultural tenant remains untouched and unaffected by the Estates Acquisition Act. 5. The status of non-agricultural tenant remains untouched and unaffected by the Estates Acquisition Act. 5. In view of his findings the learned Munsif decreed the suit in the preliminary form by his judgment and decree dated 29.9.69. The learned Sub-Judge, Additional Court, Burdwan, by his judgment and decree dated 5.3.1970 dismissed the Title Appeal No. 371 of 1969 filed by the defendant. Being dissatisfied, the defendant moved up before this Court in Second Appeal No. 87 of 1971, which was admitted on 10.12.75. But the defendant could not succeed in the Second Appeal also as the same was dismissed on 28.2.80. 6. The real legal battle between the parties began when the plaintiff-decree holder sought to put the decree into execution. The defendant judgment debtor filed an application under S. 47 of the Code of Civil Procedure on 20.9.84 and a Misc. Case No. 37 of 1984 was registered wherein the judgment-debtor claimed that the decree obtained by the plaintiff was no longer executable as the decree-holder had lost his right to retain the land being not in his khas possession on the material date under S. 3A of the Land Reforms Act which came into force on 9.9.80. 7. Section 3A was substituted by the West Bengal Land Reforms (3rd Amendment) Act, 1986 which reads as follows:- (1) The rights and interests of all non-agricultural tenants and under-tenants under the West Bengal Non-Agricultural Tenancy Act, 1949 (West Bengal Act XX of 1949) shall vest in the State free from all encumbrances, and the provisions of Section 5 and 5A of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954) shall apply, with such modifications as may be necessary, mutatis mutandis, to all such non-agricultural tenants and under-tenants as if such non-agricultural tenants and under-tenants were intermediaries and the land held by them were estates and a person holding under a non-agricultural tenant or under-tenant were a raiyat. Explanation.-Nothing in sections 5 and 5A of the West Bengal Estates Acquisition Act, 1953 shall be construed to affect in any way the vesting of the rights and interests of a non-agricultural tenant or under-tenant under the West Bengal Non-Agricultural Tenancy Act, 1949 in the State under sub-section (1) of this section. Explanation.-Nothing in sections 5 and 5A of the West Bengal Estates Acquisition Act, 1953 shall be construed to affect in any way the vesting of the rights and interests of a non-agricultural tenant or under-tenant under the West Bengal Non-Agricultural Tenancy Act, 1949 in the State under sub-section (1) of this section. (2) Notwithstanding anything contained in sub-section (1), a nonagricultural tenant or under-tenant under the West Bengal Non-Agricultural Tenancy Act, 1949, holding in his khas possession any land to which the provisions of sub-section (1) apply shall, subject to the other provisions of this Act, be entitled to retain as a raiyat the said land which together with other lands, if any, held by him shall not exceed the ceiling area under S. 14M." 8. Judged by the provision of Section 3A, Bhabatarini and after her, her legal heirs who were non-agricultural tenants and the judgment debtor who was a under-tenant under them became intermediaries and the land held by them were estates which vested in the State on 9.9.80. But the learned Munsif in the Executing Court while disposing of the application under S. 47 C.P.C. has held that as the tenancy in favour of the defendant had ceased before 9.9.80, he is not entitled to protection under S. 3A of the Land Reforms Act. He has placed reliance on the definition of a tenant given in Section 2(h) of the West Bengal Premises Tenancy Act. This definition inter alia says that the tenant shall not include any person against whom any decree or order for eviction has been made by a court of competent jurisdiction. Upon such finding the learned Munsif dismissed the application filed by the judgment-debtor under S. 47 C.P.C. 9. Mr. Mukherjee, the learned Counsel for the petitioner, has submitted that the view taken by the executing court is erroneous and he has referred to certain decisions to fortify his argument. The learned Counsel has referred to A.I.R. 1975 S.C. 2295, Vidya Sagar vs. Smt. Sudesh Kumari & Ors.; A.I.R. 1977 S.C. 5, Gurucharan Singh vs. Kamala Singh & Ors.; and 1983 (II) CHN 98 , Benode Behari Ghosal vs. Shew Kamal Singh. A.I.R. 1975 S.C. 2295 relates to a case coming under the purview of U.P. Zamindari Abolition and Land Reforms Act. A.I.R. 1975 S.C. 2295 relates to a case coming under the purview of U.P. Zamindari Abolition and Land Reforms Act. A question arose whether the decree obtained before the said Act coming into force could be put to execution after the Act came into force. In that case the appellant in execution sought for possession basing his right under the decree. The decree was on the basis that he was a co-sharer of certain intermediary's interest in the land in question along with the vendors, namely, his co-sharers. Since, however, on and from July 1, 1970, all rights and title in that proprietary land ceased to exist and vested in the State, the decree to that extent became devoid of substance inasmuch as the proprietory interests with regard to which alone the decree was passed had vested in the State and nothing survived in favour of the erstwhile proprietors, the appellant or the vendors. The appellant could execute the decree for delivery of possession only on the basis that he had the proprietary right in the land on the basis of which, as a co-sharer therein, he had obtained the decree of pre-emption. But it was observed that the old property became extinct and the proprietors including the appellant had nothing left with them after the vesting in the State and necessarily, therefore, the decree cannot be executed for the reason. It would have been possible to execute the decree only if the interests in the land as such survived in the proprietors." A.I.R. 1977 S.C. 5 is a case under the Bihar Land Reforms Act. It has been observed that a pure question of law going to the root of the case and based on undisputed or proven facts could be raised even before the Court of last resort, provided the opposite side was not taken by surprise or otherwise unfairly prejudiced. In that suit the plaintiff prayed for declaration of title and possession. I need not go into the details of the facts of that reported case but the ruling handed down in that case which is relevant for our purpose is that the possession of a trespasser, by no stretch of imagination can be deemed to be khas possession of the owner. In Benode Behari Ghosal's case, a learned Division Bench of this Court followed the decision rendered by the Supreme Court in A.I.R. 1977 S.C. 5. In Benode Behari Ghosal's case, a learned Division Bench of this Court followed the decision rendered by the Supreme Court in A.I.R. 1977 S.C. 5. This learned Bench was conscious of the fact that this Court in two earlier Bench decisions upheld the right of an intermediary to enforce his right for recovery of khas possession even after the vesting of his estate. These decisions referred to were reported in 61 C.W.N. 607 and 62 C.W.N. 505. But the learned Bench has observed that in view of the Supreme Court decision in A.I.R. 1977 S.C. 5, the earlier decisions of this Court as referred to above must be deemed to have been overruled by necessary implication and has observed that the Supreme Court laid down very clearly that an intermediary who is not in khas possession cannot enforce his right to possession even against trespassers after the vesting of the estate. 10. In the case in hand we have clearly seen that the plaintiffs were not in khas possession of the 'kha' schedule land. 11. In view of the Supreme Court decision discussed above and relied by this Court, I hold that after vesting of the estate in the State on 9.9.80, the decree obtained by the plaintiff has been rendered unexecutable. As such this revisional application is allowed and the impugned Order No. 56 dated 1.9.90 passed by the learned Munsif, Second Court, Burdwan, in Misc. Case No. 37 of 1984 is set aside. There will be no order as to costs. Application allowed; impugned order set aside.