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Petitioner: MUHAMMAD JAHIRUDDIN TALUKDAR VS Respondent: SHOARMA BIBI
P L D 1960 Dacca 475
P L D 1960 Dacca 475
Before Amin Ahmed, C. J. and Asir, J
MUHAMMAD JAHIRUDDIN TALUKDAR‑Appellant
versus
SHOARMA BIBI AND OTHERS‑Respondents
First Miscellaneous Appeal No. 41 of 1957, decided on 7th July 1959.
(a) East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), Ss. 69 & 70‑Executing Court can go behind decree for ascertaining date of debt.
The scheme of the East Bengal State Acquisition and Tenancy Act, 1950 requires that in a case under section 69, read with section 70 of the Act, the relevant date as to when the debt is incurred has got to be determined and it is not possible unless the Court makes an enquiry as to the original debt upon which a decree can be said to have been based or passed.
The executing Court can therefore go behind the decree for ascertaining the date of debt.
Dhirendranath Dutta Roy and others v. Sudhindrachandra Chakraborty P L D 1959 Dacca 551 rel.
(b) East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), Ss. 69 & 70‑Date of "debts incurred"‑Date of execution of promissory note or date ‑of decree could not be regarded as the date of the debt concerned.
Where a promissory note dated 14‑7‑49 was executed in respect of debts incurred under certain transactions which took place sometime between 20‑8‑1947 and 4‑3‑1948 and the decree based on the promissory note was passed on 8‑6‑55 it was contended that under the circumstance the debt could not be said to have been incurred prior to 7‑4‑1948 and, therefore, the execution of the decree could be refused under sections 69 and 70 of the East Bengal State Acquisition and Tenancy Act, 1950.
Held, that the date of the decree or the date of the promissory note could not be regarded as the date of the debt concerned. Therefore, the debt in respect of which the promissory note was executed or the decree was passed on 8‑6‑55 must be said to have been incurred before the 7th April 1948. ' The decree, however, in so far as it provides for the costs, cannot be said to be the debt in respect of which any relief can be asked for on the principle of section 69 read with section 70 of the East Bengal State Acquisition and Tenancy Act, 1950.
D. C. Bhattacharyya for Appellant. B. K. De for Respondents.
JUDGMENT
ASIR, J.‑This appeal by the judgment‑debtor is directed against an order, dated 21‑1‑1957, passed by the Subordinate Judge, 2nd Court, Mymensingh, in Miscellaneous Case No. 65 of 1956, started under section 47 of the Code of Civil Procedure, read with section 69 of the East Bengal State Acquisition and Tenancy Act, 1950 (which we shall hereinafter call as the Act), in Money Execution Case No. 7 of 1956. The Opposite‑Party decree‑holder started execution of the decree obtained on 8‑6‑55 in Money Suit No. 2 of 1955 (formerly Money Suit No. 5 of 1952) of the Fourth Court of the Subordinate Judge at Mymensingh. The decree was for Rs. 7,031‑12‑6 including costs‑the principal claim being for Rs. 6,000 only. It is not disputed that the decree was based on a promissory note for Rs. 6,000 in respect of certain debts incurred in connection with jute business sometime between 3rd of Bhadra, 1354 B. S. and 20th of Falgoon, 1354 B. S., corres ponding to 20th of August 1947, and 4th of March 1948, respectively.
2. The objection of the judgment‑debtor‑appellant was to the effect that in view of the provisions of section 69 read with section 70 of the Act, the decree was not executable. The learned Subordinate Judge, after a consideration of the evidence on record, came to a finding that the judgment‑debtor‑petitioner was not a rent‑receiver. He also found that the decree being based on a promissory note, dated 14‑7‑49, the provisions of section 69 and section 70 of the Act were not attracted. In this view of the matter, the application under section 47 of the Code of Civil Procedure was rejected and the Execution Case was directed to proceed. Hence this appeal by the judgment‑debtor.
3. In this First Miscellaneous Appeal, the learned Advocate for the judgment‑ debtor ‑appellant contends that the learned Subordinate Judge erred in law in holding that the debt in question was not liable to be scaled down under section 70 of the Act. He has also contended that the learned Subordinate Judge erred in law in finding that the appellant was not a rent‑receiver within the meaning of section 2, subsection (23) of the Act.
4. The learned Advocate for the respondents on the other hand contends in reply that the decree under execution was based on the promissory not":,, dated 14‑7‑49, which was executed after payment of Rs. 700 for a sum of Rs. 6,000, and, as such, according to him, the debt cannot be said to have been incurred prior to 7th of April, 1948. He has also contended that the appellant having no rent‑receiving interest could not claim to be a rent‑receiver in order to get the protection of section 69 of the Act.
5. With regard to the question as to whether the debt in the present case can be said to have been incurred on or before the 7th of April 1948 it is quite clear that the promissory note, dated 14‑7‑49, was executed in respect of debts incurred under certain transactions which took place sometime between 20th of August 1947, and 4th of March 1948. The learned Subordinate Judge seems to have been under a wrong impression when he observed that as an executing Court he cannot go behind the decree for the purpose of ascertaining the date as to when the debt was incurred. The scheme of the Act (East Bengal State Acquisition and Tenancy Act, 1950) requires that in a case under section 69, read with section 70 of the said Act, the relevant date as to when the debt is incurred has got to be determined and it is not possible unless the Court makes an enquiry as to the original debt upon which a decree can be said to have been based or passed. In the case of Dhirendranath Dutta Roy and others v. Sudhindrachandra Chakraborty (P L D 1959 Dacca 551), to the decision of which one of us is a party, it has been laid down:
"That the Legislature has expressly empowered the executing Court to examine the nature and date of the debt before he orders execution, and the words "debts incurred" in section 70 of the East Bengal State Acquisition and Tenancy Act make it more than clear that the executing Court is bound to determine whether the decree is a decree which relates to a debt incurred prior to the 7th of April 1948, or to a debt incurred on a date subsequent to the 1st of April 1948."
6. It is thus clear that the date of the decree or the date of the promissory note in the present case could not be regarded as the date of the debt concerned. In our view, therefore, the debt in respect of which the promissory note was executed or the decree was passed on 8‑6‑55 must be said to have been incurred 5 before the 7th of April 1948. The decree, however, in so far as it provides for the costs, namely, a sum of Rs. 1,013‑12‑6 cannot be said to be the debt in respect of which any relief can be asked for on the principle of section 69, read with section 70 of the Act.
7. This takes us to the consideration of the question as to whether the finding of the learned Subordinate Judge that the appellant is not a rent‑receiver can be taken as a proper finding.
8. In his application under section 47 of the Code of Civil Procedure, read with section 69 of the Act, the appellant petitioner took the plea that he was a rent‑receiver within the meaning of section 2, subsection (23) of the Act. But, on a persual of the entire application, it seems, he laid stress upon the fact that he owned rent‑receiving interest which vested in the Provincial Government by reason of Notification No. 4835 L. R., dated 2‑4‑56, and Notification No. 2852 L. R., dated 2‑4‑56. At the time of the hearing, he also led evidence to show that the lands in question had been let out to tenants and rents had been realised on account of such tenancies. In fact, Exhs. 2 series which were counterfoils of rent‑receipts and Exhs. 3 series, which are rent‑receipts said to have been granted to his tenants, were produced to establish the fact that portions of the land had been let out to certain tenants.
9. The learned Advocate for the appellant, however, did not lay much stress on the importance of these documents. It was found, and we think rightly, by the learned Subordinate Judge that there were discrepancies, both with regard to point of time as also with regard to the quantities of land said to have, been leased out to these tenants, as between these documents and the kabalas, Exhs. 1 series, upon which the judgment‑debtor claimed to have acquired the interest in the taluk concerned. The lessees concerned were relations of the judgment‑debtor. In fact, the learned Advocate has not even attempted to challenge the finding of the learned Subordinate Judge that probably "only after the passing of the decree he was possibly advised to take the plea of being a rent‑receiver and, consequently, he fabricated the rent‑receipts and counter‑foils in collusion with his close relations." The finding that these lands, as covered by the kabalas set up by the appellants, were not let out and that they were in his khas possession cannot, therefore, be disturbed in view of the evidence on record.
10. The learned Advocate for the appellant has then contended that apart from any proof as to whether these lands were let out to anybody and as to whether any rent was received or realised from such tenants, the very fact as evidenced by his kabala, Exh. 1, that he purchased a taluki interest would show that he was entitled to claim the protection under section 69 of the Act as a rent‑receiver. He has relied upon the definition of the words "rent‑receiver" as given in section 2, subsection (23) of the Act. Section 2, subsection (23) of the Act is in the following words:
"rent‑receiver" means a proprietor or a tenure‑holder, and includes a raiyat, and under‑raiyat or a non‑agricultural tenant whose land has been let out and also the immediate landlord or a person who holds any land free of rent in consideration of some service to be rendered, but does not include a person in respect of such of his lands, as has been let out, together with any building standing thereon and necessary adjuncts thereto, otherwise than in perpetuity."
According to him, the clause "and includes a raiyat and under raiyat or a non‑agricultural tenant whose land has been let out" should be interpreted as an independent clause having no bearing upon the earlier clause ("rent‑receiver" means a proprietor or a tenure‑holder). These two clauses, if independent, as argued by him, would indicate that a proprietor or a tenure‑holder without letting out any land can be called a rent‑receiver for the purpose of this Act.
11. Mr. De has, however, contended that the object of the Act and the very preamble do not warrant such an interpretation of the expression "rent‑receiver". He has also contended that it is difficult to conceive of a rent‑receiver who never receives any rent.
12. No materials have been placed before us to establish conclusively that the appellant was in fact an undisputed proprietor or tenure holder at the material time. On the other hand, the appellant seems to have acquired a very small quantity of land not even exceeding ten bighas in area. In Exh. 1, it has been indicated that some taluki land was being conveyed. In Exh. D (3), which is the corresponding khatian, the status is indicated as that of a permanent tenure‑holder whereas in Exhs. 2 to 2 (D) it was sought to be indicated that the tenant set up by the petitioner had the status of a korfa raiyat in which case the appellant could not claim any status higher than that of a raiyat. So, it is difficult to find as to what precisely was the status of the appellant in regard to the lands which have been recorded in khas possession as per khatian, Exh. D (3). This aspect of the question does not also seem to have been raised in that form before the lower Court.
13. In view of the finding that the lands were in khas possession of the appellant, it is not possible to find that he ever realised or received any rent within the meaning of subsection (22) of section l of the Act. The learned Advocate has drawn our attention to subsection (4) of section 3 of the Act in this connection and has argued that even in regard to khas lands, there is some interest of the tenure‑holder concerned to be acquired by notification and he has argued further that unless by implication the Appellant was regarded as a rent‑receiver there would be no need for a notification as indicated in subsection 4 (a) of section 3 of the Act. In the view we have taken that the appellant has no rent‑receiving interest and that he is in possession of a small quantity of khas lands only for himself just like a raiyat or an under-raiyat this question does not arise and he is to be regarded as a raiyat or under raiyat direct under the Government. Such khas lands remain in possession of the person concerned subject to fixation of rent that might be settled by the Revenue Authorities and no interest, therefore, in the facts of the present case, is necessary to be acquired under the Act. His contention that the appellant was a rent‑receiver must, therefore, fail.
14. Apart from all these, it is curious to find, if the appellant was really a rent‑receiver, that he never raised this question in that form during the pendency of the suit before it was decreed though the Act had come into force by that time.
15. In the result, this appeal fails and is dismissed with costs.
AMIN AHMED, C. J.‑I agree.
K. B. A Appeal dismissed.