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Petitioner: SANTA KUMAR DE VS Respondent: ANANDA KUMAR DE
P
P. L. D. 1951 Dacca 78
Before Guha, J.
SANTA KUMAR DE‑Plaintiff‑-Appellant
versus
ANANDA KUMAR DE and others‑Respondents
Appeal from appellate; Decree No. 980 of 1944, decided on 18th December 1950.
(a) Bengal Land Revenue Sales Act (VII of 1868), S. 12, Exceptions 3 and 4‑Applicable even though defences not raised in written statement‑Function of Court to apply law to parti cular set of facts.
The contention that the third and fourth exceptions to Section 12 of‑the Act VII of 1868 are not applicable to the case as those defences have not been raised is rot tenable because when all the necessary facts have been found it is not material that that particular defence was not raised in the written statements. It is the function of the Court to apply the law to a particular set of facts and not for the defence to raise the question of law, that arised in a particular set of facts and cir cumstances.
The Legislature intended to protect tenures on which tanks have been excavated during the period of the tenure. In this case the tank is much older and the lease was granted in respect of an already existing tank. So the defendants cannot avail of the protection in exception fourthly to section 12 of Act VII of 1868.
(1941) 46 C. W. N. 802 P. C., (1931) 58 I. A. 258, (1946) 51 C. W. N. 292, (1948) 53 C. W. N. (I. D. R.) 65, (1942) 47 C. W. N. 241, 58 I. C. 243 and 53 C. W. N. (I. D. R.) referred to.
(b) Bengal Land Revenue Sales Act (VII of 1868), S. 12 ---Occupancy raiyati‑-Incumbrance upon‑Purchaser in Revenue Sale‑Not binding on him‑Rent fixed not alterable.
The purchaser in a revenue sale cannot annual incumbrance of an occupancy raiyati imposed before the current Settlement upon the tenure for the purpose of cultivation. In this case the lease was not for the purpose of cultivation so their lease is not binding on the Government beyond the period of the former lease, that is, beyond 1331 B. S. (1924) and so it is not binding on the revenue sale purchaser.
Rent so fixed is unalterable for the period of settlement until it is altered by a suit under section 104 H of the Bengal Tenancy Act.
The defendants' "tenancy" is protected under the exception thirdly to section 12 of the Act VII of 1868 as a tenancy recognis ed by the current temporary settlement proceedings bearing a fixed rent of 2 annas for the period of settlement.
I. L. R. (1942) 2 Cal. referred to.
(c) Bengal Land Revenue Sales Act (VII of 1868), S. 2 Tenure means all interests in land.
The word "tenure" is defined in section 2 of the Act VII of 1868 and it says that it "includes all interests in land." The word used is "includes" and that means "to embrance within limits" So the word "tenure" mentioned in the Act is intended to be used in a special sense comprising all interests in land unless excepted as in section 14 of the Act in the case of occupancy raiyats. The general principle of construction of a stature is that if a word is defined in, the Statute as bearing a meaning, the Legislature intended that the said word shall bear the same mean ing wherever it occurs in that Statute. In a Court of law what the legislature intended to mean can only be ascertained from what it has chosen to enact.
(1946)51 C. W. N. 292, (1855) 7 De C. M. and G. 525 (539), (1882) 8 Q. B. D. 579, (1938) 43 C. W. N. 46, (1948) 53 C. AN. N. (I. D. R.) 65, 46 C. W. N. 493. (1942) 47 C. W. ‑N. 241, (1942) I. L. R. 2 Cal. 502 and A. I. R. 1949 Cal. 652 referred to.
(d) Partition Act (V of 1897), S. 2‑Partition can be claim ed by persons owing interests not co‑ordinate in degree.
Persons owing interests, which are not co‑ordinate in degree; can claim partition and get relief.
The financial conditions of either of the parties cannot be a guide for application of the provisions in section 2 of the Act.
(1910) L. R. 37 I. A. 198 and (1897) C. W. N. 406, referred to.
Nirmal Chandra Nandi, for Appellant. Rohinibinod Rakshit with Sabitaranfan Pal, for Respondents No. 1, 2, & 5.
JUDGMENT
GUHA, J.‑This appeal is on behalf of the plaintiff and arises out of a suit for declaration of plaintiff's title to 3128 share to the suit tank and for khas possession of the same and also for recovery of damages for wrongful misappropriation of fish and there is also and alternative prayer for partition of ., the tank under section 2 of the Partition Act (IV of 1897).
The plaintiff's case is that the disputed tank appertaining to Noabad Taluk Trahiram has been sold for arrears of revenue to Profroma‑defendant No. 10 Satish Chandra Choudhury and the plaintiff has purchased the same from the latter and has got possession of all the land of this taluk except a 3/128th share of the disputed tank, which the defendants allege to hold as raiyats, that there has been no raiyati tenancy under Taluk Trahirant but taking recourse to the plea of a fictitious raiyati interest the defendants caught and misappropriated fish worth Rs. 24 from the tank and also denied the plaintiff's title to the share of the tank. Hence this suit.
The suit has been contested by defendants Nos. 1, 2 and 5 and 6 to 9 and they have contested the suit by filing two sets of written statements. Their defence inter alia is that the plaintiff has no title to the disputed tank and she is mere benamdar of her husband Armada Charan De, one of the defaulting proprietors, who has purchased this Taluk Trahiram in the benami of proforma‑defendant No. 10 Satish Chandra Choudhury and subsequently Satish Choudhury transferred it to the plaintiff, that assuming Satish Choudhury to by a bona fide purchaser, the interest of the defendants in the disputed share of the tank is an occupancy right and so is not liable to be annulled by a purchaser in revenue sale and that the alternative prayer for partition is not maintainable for there cannot be any partition between a landlord and his tenants.
The learned Munsiff, Sadar, Chittagong has come to the conclusions (1) that proforma‑defendant Satish is not a benamdar of Annada,‑husband of the plaintiff and that the suit is maintainable by the plaintiff, (2) that the defendants are not occupancy raiyats and so are not entitled to' protection under section 14 of Act VII of 1868 (B. C.) and the proviso to section 37 of the Bengal Land Revenue Sales Act (XI of 1859), (3) that the dis puted tenancy is a tenure within the meaning of section 1 of Act VII of 1868 and that the disputed tank has been excavated before the creation of the defendants' tenancy and so the defendants' tenancy is a bona fide one and is protected under section 12 (4) of Act VII of 1868 though it is not an occupancy holding, (4) that the plaintiff's claim for partition is not maintainable as the defendants have a precarious tenancy terminable by legal notice and (5) that the plaintiff has no right to claim damages and has, therefore, held that the plaintiff is entitled to a declaration of her title but not to khas possession nor to partition and damages and decreed the suit in part only.
Against that decision the plaintiff filed an appeal before the learned District Judge of Chittagong and in that appeal the plaintiff raised two points; firstly, that the learned Munsiff was wrong in holding that there could be no partition between a landlord and his tenants and secondly, that the learned Munsiff was in error in holding that the defendants and a protected interest within the meaning of exception fourthly to section 12 of Act VII of 1868 (B.C.). On the first point the learned District judge has arrived at the finding that a former talukdar has granted a dayemi kaystai, mokarari lease to the defendants in respect of 3/128th share of the disputed tank and the plaintiff is entitled to khas possession as to over 15 annas' share while defendants as her tenants are entitled to possess the remaining interest and in a partition suit what is relevant is not title but the fact of their joint possession being inconvenient and in the present case what is valuable in the property is the water of the tank and so it cannot be said that it will be beneficial to all the co sharers that the property should be sold but the defendants will be precluded by their financial circumstances from purchasing the whole of the tank and therefore the learned District Judge has held that the provisions of section 2 of the Partition Act should not be applied to this ‑case. As regards the second question of protected interest, the learned District judge has held that the defendants' interest is protected under exception thirdly to section 12 of Act VII of 1868 (B.C.) and in the‑result the learned DiEtrict judge has dismissed the appeal. Hence this appeal by the plaintiff.
Mr. Nirmal Chandra Nandi‑for the plaintiff‑appellant has raised before me the aforesaid two contentions but in the reverse order, namely, firstly he contends that the defendants‑are not entitled to claim protected interest at all in the facts and circumstances of the case and secondly that his client is entitled to an order under section 2 of the Partition Act (IV of 1897).
To appreciate the first point raised by Mr. Nandi I need state certain facts in the case, which have been found by the lower appellate Court and certain provisions in Act VII of 1868. The tank in dispute is within a noabad taluk under the Government in the district of Chittagong. These noabad taluks are temporary settled taluks for a specified period. In that locality the cadestral Survey Settlement took place in 1898 and the Revisional Survey in 1930. In both the cadestral Survey and Revisional Survey there was a proviso that the noabad talukdar was incapable of creating an interest adverse to the Government. That proviso also lays down that any uncultivated land will be, at the expiry of the lease, at the disposal of the Government, although the talukdar will have the option to take fresh settle ment in respect of the cultivated land since the talukdar cannot be expected to perform the implied condition of his lease, namely, that he should bring the land under cultivation unless he puts tenants upon it. So a purchaser in a revenue sale cannot annul incumbrances of an occupancy raiyati imposed before the current Settlement upon the tenure for the purpose of cultivation. T he defendants tenancy has been created, by Patta (Ext. C) dated the 20th February, 1921, which is ''described as dayemi kayemi mokarari lease. From khatian No. 4664 of mousa Dobash (Ex. 8) it is to be found that the settlement of the taluk in question is for a period of 30 years from the 1st of April, 1930 and the tenants khatian No. 4665 records the right of the defendants as holding on the rent reserved in the Patta (Ex. C) and that it is fixed from the 1st of April, 1930. Though the defendants talukdar's lease expired in 1331 B.S. corresponding to 1924, they, were entitled to continue to possess during the following settle ment even if the lease be not binding on the Government beyond the period of the former lease. The entry in Revisional Survey khatian shows that the defendants are holding on the rent reserved in the Patta and that the entry against that rent is fixed from the 1st April, 1930 and this indicates that the Settlement Authorities have considered that it has been fixed for the period from the date of that settlement. That the rent so settled by the revenue authorities remains settled until it is altered by a suit under section 104‑H of the B.T. Act.
Sree Kumar Chandra Singh Budhoria and others v Midnapur Zamindary Co. Ltd. (1941) 46 C. W. N. 802 P. C The learned District judge finds that the rent reserved in the Patta has been thus recognised by the settlement authorities as fixed for the period of the settlement, namely, from 1930 to 1960.
In Act VII of 1868 (B. C.) we find the following provisions :‑---
Section (1).‑"The word `tenure' includes all interests in land, whether rent paying or lakheraj (other than estate as above defined), and all fisheries, which, by the terms of the grants creating the same, or by the custom of the country, are transferable, and whether the right of selling or bringing them to sale for an arrear of rent may or may not, have been specially reserved by stipulation in any instrument.
Section 1‑2‑" The purchaser of any tenure sold under the provisions of section 11 of this Act shall acquire it free from all incumbrances which may have been imposed upon it after its creation, or after the time of settlement, whichever may have last occurred, and shall be entitled to avoid and annul all under‑tenures, and forthwith to eject alia under‑tenants, with the following exceptions :‑
Thirdly.‑Tenures created or recognised by the settlement proceedings of any current temporary" settlement as tenures bearing a rent which is fixed for the period of such settlement.
Fourthly.‑ Tenures of lands whereon dwelling houses, manufactories or other permanent building have been erected or whereon permanent gardens, plantations, tanks, canals, places of worship, or burning or burying grounds have been made.
Section 14.‑" Provided always that nothing hereinbefore contained shall be construed to entitle any such purchaser under section 11 of this Act to eject any raiyat having a right of occupancy at a fixed rent, or at a 'rent assessable according to fixed rules under the laws in force, or to enhance the rent of any such raiyat otherwise than in the manner prescribed by such laws, or otherwise than as the former proprietor, irrespectively of all engagements made since the time of settlement, may have been entitled to do."
The contention of the learned Advocate for the appellant on the first point is divided into two parts. Mr. Nandi for the appellant firstly submits that his client has been prejudiced because the defendants in their written statements alleged that they were protected as they were occupancy raiyats and claimed protection under section 14 of Act VII of 1868 ; but both the Courts below have found that they were not so and therefore they were not entitled to claim protection under section 14 of the said Act read with Section 37 of Act XI of 1859 (Revenue Sale Law) and that being the state of the facts the trial Court was wrong in giving them protection under the exception fourthly to section 12 of the Act VII of 1848, 'while the learned District judge had wrongly held that the defendants were protected under the exception thirdly to section 12 of the said Act. Mr. Nandi urges that his client has been very much prejudiced. I am unable to accept this branch of the argument of Mr. Nandi because all the facts necessary to give relief to the defendants either under the exception thirdly or the exception fourthly have been found on evidence and it is difficult to conceive what other facts were necessary to be brought on the record to give relief to the def6ndants either on the basis of the third exception or the fourth exception to section 12 of Act VII of 1868. The facts are admitted and have been found and the only question was under which exception to Section 12 of the said Act the defendants' interest was protected. So there is no question of prejudice. I, therefore, overrule the contention of Mr. Nandi on the first point of his first contention.
The second part of Mr. Nandi's first contention is that the defendants have been rightly found by the learned District judge not to be entitled to the protection given in exception fourthly to section 1.2 of Act VII of 1868 but the learned District judge was wrong in holding that the defendants were protected under the exception thirdly to section 12 of Act VII of 1868 and according to Mr. Nandi the defendants had no protected interests under either of the said exceptions. He develops his argument in stating that as it has bean found that the defendants are not occupancy raiyats they are not protected under Section 14 of the Act V1I of 1868 and the proviso to Section 37 of the Act XI of 1859. That is now well‑established. See Turner Morrison &.Co. Ltd: v. Monmohan Chaudhury (1931) 58 I. A. 258. Mr. Nandi urges then that neither the exception thirdly nor fourthly to Section 12 of Act ‑VII of 1868 applies to this case because in the present case the defendants are ordinary raiyats and those two exceptions apply only to tenures created or recognised by the settlement proceedings and that the word 'tenure' there means a 'tenure' as ordinarily meant and it does not bear the meaning given in the definition of the word 'tenure' in Section 1 of the Act; and in support thereof he refers to me to the decision of the Calcutta High Court in the case of Aparna Charan IVlahajan and others v. Elahabux (1946) 51 C. W. N. 292 and relying or: that decision he submits that the decision of this Court in the case of Masnina Bibi and others v. Fajleh Ahmad (1948) 53 C. W. N. (I. D.‑R.) 65 is distinguishable. Mr. Nandi next submits that the exception fourthly is not applic able because it was not a ''tenure' in its ordinary meaning in asmuch as that exception refers to a tank excavated during the period of tenure but here the tank is much older than the tenure. In the submission of Mr. Nandi the exception thirdly also is not attracted because it is not a tenure but a rayiati and 'tenure' in that exception means a tenure as ordinarily understood and that it has not been 'recognised' by settlement proceedings merely by this being so recorded in the settlement khatian, in that connection he draws my attention to the decision of Pal. J. in the case of Rohini Ranjan Das v. Umesh Chandra Dutta and others (1942) 47 C. W. N. 241. Mr. Nandi finally brings to my notice that the defendants did not seek protection under any of the said two exceptions in `their written statements. Mr. Nandi urges before me that the‑ definition of 'tenure' in Section 2 of Act VII of 1868 attracts only those tenan cies which are held directly under the Government and not as in this case where the defendants' tenancy is under the Noabad Taluk of which his client is the owner by purchase and his client's tenure is therefore `tenure' mentioned in the exceptions thirdly and fourthly to Section 12 and not that of the defendants, who are tenants under his client; while Mr. Rakshit for the respondents contend that 'tenure' in the said two exceptions means; as defined in the Act "all interests in land" Egid according to hire 'tenure' includes 'under tenures' and `raiyats' except the `occupancy raiyats' who 'are pro tected under Section 14 of the Act. Mr. Rakshit relies on the case reported at page 65 of 53 C. W. N. (I. D. R.) referred to above for the definition of `tenure'.
In my opinion the contention of Mr. Nandi that the third and fourth exceptions to Section 12 of the Act VII of 1868 are not applicable to the case as those defences have not been raised is not tenable because when all the necessary facts have been found it is not material that particular defence was not raised in the written statements. It is the function of the Court to apply the law to a' particular 'set of facts and not for the defence to raise the question of law that arises in a particular set of facts and circumstances. In this case the trial Court has held relying on the case of Peary Mohan v. Rasih Chandra 58 I. C. 543 that the defendants are protected under exception fourthly to Section 12 of the Act. In that case Mukherji and Fletcher, J J. have held that in order that a tenure of land on which permanent tanks have been made may be protected under exception 4 to section 12 of Act VII of 1868 from being annulled by a purchaser at a revenue sale, it is not necessary to establish that the tank was made either by the tenure holders or their predecessors‑ in‑interest and that it was immaterial whether the tank had been in existence from before the lease creating the tenure. In this case the fact is admitted that the tank in dispute has bean in existence since before the creation of defendant's tenancy on the 20th February 1921. The words in the fourth exception are "Tenures of lands whereon tanks have been made." If the Legislature has intended‑to mean "tenures of lands on which tanks existed" it would have said so. The expression in exception fourthly to section 12. "lands on which tanks have been made" appears to me to justify the conclusion that the Legislature intended to protect tenures on which tanks have been excavated during the period of the tenure. In this case the tank is much older and the lease was granted in respect of an already existing tank. So the defendants cannot avail of the protection in exception fourthly to section 12 of Act VII of 1868 and I am unable to agree with the decision in 58 I. C. 243.
The next question is whether the defendants are entitled to claim protection under exception thirdly to Section 12 of Act VII 1868 and the learned District judge has held that the defendants are entitled to avail of that protection. Section 12 provides that purchaser of any tenure sold under the provisions of section 11 of the Act shall acquire it free from all incumbrances which may have been imposed upon it after its creation or after the time of settle ment, whichever may have last occurred and shall be entitled to reject all under‑tenures, with the following 4 exceptions and the third exception is to the effect :‑
"Tenures created or recognised by the settlement proceedings of any current temporary settlement as tenures bearing a rent which is fixed for the period of settlement."
In this case the defendants hold the disputed tank from the 20th February 1921 at a rental of 2 auras and the settlement of the Taluk in question has been made in 1930 for a period of 30 years, vide khatian No. 4664 of mouza Dobas (Ex. 8) from 1st April 1930 and the right of the defendants is recorded in hhatian No. 4565 bearing a rental of 2 annas from the 1st April 1930, and so on the face of it the defendants' tenancy is an encumbrance imposed upon the taluk from before the time of the settlement. In view of the provisions in the Act it is clear that the purchaser in a revenue sale cannot annul encumbrance of an occupancy raiyati imposed before the current settlement upon the tenure for the purpose of cultivation. In this case the lease was not for the purpose of cultivation so their lease is not binding on the Government beyond the period of the former lease, that is, beyond 1331 B. S. (1924) and so it is not binding on the revenue sale purchaser, namely, the plaintiff in this suit. Now from the facts it is clear that in the Revisional Survey Settlement the defendants have been shown as holding the tenancy at the same rate of rent as fixed in the Patta of 1921 and the entry against the rent is that it is fixed from the 1st of April, 1930, Vie date of the current temporary settlement, and so it appears to me that the defendants' tenancy has been recognised in the current temporary settlement for the period of 30 years from the 1st April 1930 and thereby the settlement authorities have accepted the rate of rent as 2 annas from the date of the lease to the taluhdar and have recognised it as fixed from 1930 to 1960. It is well‑settled that rent so fixed is unalterable for the period of settlement until it is altered by a suit under Section 104 H of the Bengal Tenancy Act. See Kumar Chandra Singh Dudhoria and others v. Midnapur Zamindary Co Lad. (1941) 46 C. W. N. 802 ‑P. C. I. L. R. (19‑12) 2 Cal. 1. So in my opinion it is abundantly clear that the defendants "tenancy" is protected under the exception thirdly to section 12 of the Act VII of 1868 as a tenancy recognised by the current temporary settlement proceedings bearing a fixed rent of 2 annas for the period of settlement. Mr. Nandi urges that the word "tenure" in section 12 of the Act VII of 1868 has got a different meaning from that which is stated in the definition of the word given in the Act and in support of his argument he cites the case of Aparna Charan Mohaian and others v. Elahabux (1946) 51 C. W. N. 292. I am unable to accept this contention of Mr. Nandi. The word "tenure" is defined in Section 2 of the Act VII of 1868 and it says that it "includes all interests in land". The word used in "includes" and that means "to embrance within limits". So in my opinion the word "tenure" mentioned in the Act is intended to be used in a special sense comprising all interests in land unless excepted as in ‑Section 14 of the Act in the case of occupancy raiyats. The general principle of construction of a statute is that if a word is defined in the statute as bearing a meaning, the Legislature intended that the said word shall bear the same meaning wherever it occurs in that statute. In a Court of law what the Legislature intended to mean can only be ascertained from what it has chosen to enact. As said by Turner, L. J. in Alexander v. Brame (1855) 7 De G. M. & G. 525 (539). "It is no doubt the duty of the Courts so to construe statutes as to suppress the mischief against which they are directed, and to…
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