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Petitioner: SAFIUDDIN KAZI VS Respondent: MOSLEM ALI HOWLADER
P L D 1960 Dacca 555
P L D 1960 Dacca 555
Before Hamoodur Rahman, J
SAFIUDDIN KAZI‑Appellant
versus
MOSLEM ALI HOWLADER AND OTHERS‑Respondents
Appeal from Appellate Decree No. 693 of 1958, decided on 9th February 1960.
(a) East Bengal State Acquisition and Tenancy Act 1950 (XXVIII of 1951), Ss. 30, 54 & 56‑Civil Courts can declare title or possession of tenants‑Suit instituted by landlord‑Heirs of tenant necessary party.
Reading sections 54 and 56 together with section 30, East Bengal State Acquisition and Tenancy Act, 1950. It is clear that notwithstanding section 30, civil courts still retain jurisdiction to declare title or possession of tenants and the Revenue‑Officer when preparing records of rights or Compensation Assessment‑rolls, under the said Act, cannot ignore the final orders or decrees of civil courts in such suits. Indeed, under section 56 no party is even entitled to raise any issue in a proceeding under section 19 of the said Act which is substantially in issue in a suit, appeal or other proceeding had between the same parties in a Civil Court.
Held, that the heirs of tenant were necessary parties to the rent suit instituted by the landlord. In the absence of the said heirs the decree obtained by the landlord was not a rent decree but merely a money decree. By the execution of that decree the tenancy or the holding did not pass to the auction purchaser. A suit filed by heirs of tenant for declaration of title was not barred.
Abdul Mannan and others v. Mafizuddin Bepari and others P L D 1959 Dacca 151 ; Bhandi Shingh and others v. Ramadhin Roy and another 10 C W N 991 and Province of East Bengal v. Dewan Abdul Alim, Mutwalli 9 D L R 26 ref.
(b) Jurisdiction‑Civil Court's jurisdiction can only be taken away by express provision of law‑Interpretation of statutes.
For the interpretation of a particular statute it is permissible to look at the previous state of the law ; but nevertheless it is an equally well established principle that so far as the ouster of jurisdiction of Civil Courts is concerned, the legislature must do so by express provision made in that behalf. The ouster of such jurisdiction is not to be lightly inferred.
The Secretary of State v. Mask & Co. 44 C W N 709 ref.
(c) Bengal Tenancy Act (VIII of 1885), S. III‑Specific kinds of suits barred.
Only the specific kinds of suits mentioned in the statute as being barred can be affected thereby and no other suits.
The question to be determined was whether the suit could come under any one of the categories mentioned in section 30 of East Bengal State Acquisition and Tenancy Act, 1951. It was not a suit for the alteration of rent or for the determination of the incidents of any holding. There was no dispute that the tenancy was a karsa tenancy. There was no question as to the nature of the tenancy itself. The question was whether the plaintiff was entitled to claim that right in respect of a particular portion or parcel of land said to have been taken settlement of by him. The suit was purely for the declaration of his title to the land and not for the determination of any question relating to his status as a tenant and as such it was not barred.
Maharaj Bahadur Singh v. Binode Behary Choudhury and others A I R 1936 Cal. 263 and Kshemananda Ku.nzar v. Rashmaya Haldar 32 C W N 132 ref.
(d) Bengal Tenancy Act (VIII of 1885), S. 87 (2)‑Abandon ment‑What is.
The abandonment of the tenancy is dealt with under section 87 of the Bengal Tenancy Act and subsection (2) thereof expressly provides that although in the case of voluntary abandon ment of residence, the landlord may enter on the holding and let it out to another tenant or take it to cultivation under himself, yet before he does that, he must file a notice in the prescribed form in the Collector's office saying that he has treated the holding as abandoned and is about to enter on it accordingly and the Collector shall cause the notice to be published in the prescribed manner.
Mere non‑residence is not sufficient to warrant the inference of abandonment. The Bengal Tenancy Act has not given any definition of the word "abandonment". But the word connotes the idea of a tenant vacating the land with the intention of never returning to it. Mere temporary absence or absence in circum stances which cannot lead to the inference that the tenant had departed from the land without caring as to what happens thereto thereafter is not sufficient to warrant the inference of abandonment.
(e) Interpretation of document‑Entire document must be taken into account.
The purpose of the interpretation of a document is to ascertain the true intent and purpose of the parties creating the document. For this purpose the entire document must be taken into account. No particular importance or weight to any particular portion or words in a document, is to be given unless and until it appears from the context of the words used in the other parts of the document as well that that particular word or that particular phrase was intended to be of such vital importance.
For instance, taking the share alone as the guiding factor where there are in other places in the document a description of the extent of that share sought to be transferred, would be unreasonable, for it may well be that the parties understood the share mentioned in the document to comprise only that particular quantity of land and not more. The emphasis given in the document upon the area which is mentioned in more than one place both in bighas and in decimals giving the method of measurement of that area, seems, however, to indicate that the executant of the document was particularly anxious to make it clear that the land conveyed was the area mentioned and not merely the share specified.
The description of the land by boundaries was also not without significance. If within those boundaries only that parti cular area was comprised, then there can possibly be no reason to hold that even that boundary was not sufficient to identify the land sought to be conveyed or was a false description of that land.
A. Hye Choudhury for Appellant. A. Sobhan for Respondent No. 1.
JUDGMENT
This appeal is against the decision of the learned Subordinate Judge, 4th Court, Barisal, reversing the judgment and decree of the Munsif, 1st Court, Perojpur, in a suit for the declaration of the plaintiff's kot korsha right in the lands described in schedule `kha' to the plaint.
The plaintiff who is the appellant before me, instituted this suit upon the following allegations: He claimed that the property in suit originally formed part of a Jama of Rs 21‑5‑6 under the Nim howla Raj Laxmi Devi possessed by one Surja Prosonna Bachpai, which was recorded in khewat No. 696 in the kersha right of Arshedali, Someraddin, Sharabullah and others in respect of C. S. plots Nos. 627 and 628 of C. S. khatian No. 425 of Monza Charbaleshswar. In this jama the said Arshedali had a 6 annas share and Someraddin had a 2 annas share whilst the remaining 8 annas share belonged to the others. The holding was, however, later subdivided between Arshedali and Someraddin on the one side and the rest on the other side and a separate jama of Rs, 10‑10‑9 was created. In the revisional settlement the said new jama lands were recorded as plots Nos. 410, 411 and 413. Thereafter Arshedali died leaving three sons and one daughter and Someraddin's interest devolved on his four sons and one daughter. In his life time, however, Arshedali had sold one bigha out of his lands to one Tasenuddin by a registered kabala dated the 30th of May, 1939 and the lands had obtained a decree against the said Arshedali and Tasenuddin in a suit for arrears of rent. Before the said decree was put into execution in Rent Execution Case No. 437 of 1943 the said Arshedali died but his heirs were not substituted in the execution case. The holding was, however, put to sale and was auction‑purchased by defendants Nos. 1 and 2 who are the sons of the said Tasenuddin. In 1946 the heirs of Arshedali started a sale set aside case but it was dismissed and it was held that their interests were not affected by the said sale as they had not been made parties to the execution case. All the heirs of Arshedall and Someraddin thereafter in the year 1335 B. S., corresponding to 1948, by two different pattas settled their entire share in favour of the plaintiff who, by virtue of the said settlement, entered into possession of the suit lands but unfortunately during the revisional settlement operation, the lands were incorrectly recorded in the names of the defendants Nos. 1 and 2 except for 34 acres which were recorded in the name of the plaintiff. Hence, he brought the suit for the declaration of his right to the remaining 2.8 acres.
This suit was contested by defendant No. 2 alone who admitted the division of the original jama and also that in the original jama Arshedali and Someraddin had 6 annas and 2 annas share respectively. It was further conceded by him that the interests of the heirs of Arshedali were not affected by the rent sale, as they were not made parties to the execution proceeding. His main contention, however, was that long before the said auction sale Someraddin had abandoned his homestead in C. S. plot No. 628 and gone away to Gabtala in P. S. Mooralganj in the district of Khulna with his children. The names of his heirs were never mutated in the landlord's sherista and so, the heirs of Someraddin were not necessary parties in the rent suit or in the rent sale. Thus, their interests had been acquired by the said defendant under the auction sale. They further contended that their father Tasenuddin actually purchased from Arshedali 4 annas 7 gandas out of his 6 annas share in the jama and this amounted to .74 acres. Thus, according to them, only the remaining 1 anna 13 gandas bad passed to the plaintiff under the settlement obtained by him in 1948. Hence, the records prepared at the revisional settlement were correct and the plaintiff had no cause of action. The maintainability of the suit under section 42 of the Specific Relief Act without a prayer for a consequential relief was also challenged and it was claimed that the suit was barred by the law of limitation.
These defendants further contended that the suit was barred by reason of the provisions of section 30 of the East Bengal State Acquisition and Tenancy Act, as the plaintiff had already filed an objection under section 19 (1) of the said Act before the appellate officer, and as a result of that obtained an order for the recording of '34 acres in his name.
The trial Court, however, held that the suit was neither barred under section 42 of the Specific Relief Act, nor section 30 (1) of the East Bengal State Acquisition and Tenancy Act. The learned Munsif also found that the heirs of Arshedali and Someraddin had possession of the land and, therefore, the plaintiff had also obtained possession through them. But since they were not made parties to the said rent suit or the execution case, their interests did not pass to the defendants by their auction‑purchase. According to him, the kabala Exh. A also transferred only .66 acre or one bigha and no more to Tasenuddin. The case of abandonment of the tenancy by Someraddin was, therefore, also rejected and the suit was decreed in favour of the plaintiff. His right, title and interest were accordingly declared in 1.70 acres of the land out of the suit lands described in schedule kha to the plaint.
On appeal the learned Subordinate Judge disagreed with the learned Munsif and held firstly that the suit was barred under the provisions of the East Bengal State Acquisition and Tenancy Act and secondly that Someraddin had abandoned his tenancy and his heirs never possessed the suit lands and, hence, the interest of Someraddin passed to the defendants by the sale in the rent execution case. Furthermore that the kabala Exh. A effectively transferred a 4 annas 7 gandas share to Tasenuddin and not only 66 acres as claimed by the plaintiff. Hence, the plaintiff had neither title nor possession in the suit lands. What ever interests his vendors had, had been extinguished by the possession of the defendants. Hence, the suit was dismissed with costs.
It is against this decision that the plaintiff has now come up on appeal to this Court and the first point that is urged on his behalf is that the learned Subordinate Judge was wrong in taking the view that the suit was barred under section 30 (1) of the East Bengal State Acquisition and Tenancy Act. The said subsection reads as follows :‑-----
"After an order has been made under section 17 directing the preparation or revision of a record‑of‑rights in respect of any area, no Civil Court shall entertain any suit or application for the alteration of rent or determination of the status of any tenant or the incidents of any holding or tenancy in such area ; and if any such suit or application relating to such area is pending before a Civil Court on the date of such order, it shall not be further proceeded with and shall abate".
It is urged that this subsection only bars suits of particular kinds, namely, suits for alteration of rent or determination of the status of any tenant or the incidents of any holding or
tenancy and not any and every kind of suit. The present suit does not come under anyone of the above categories and hence, it could not have been barred.
My attention in this connection is also drawn to the sections 54 and 56 of the said Act. The said sections read as follows ;‑---
Section 54."The Revenue‑officer shall make such alterations in the records‑of‑rights or the Compensation Assessment‑roll as may be necessary to give effect to any direction issued by the Commissioner or other officer under section 49 or an order made by a Special Judge under section 51 or section 53 or under subsection (4) of section 52 or to any final order or decree of a Civil Court or High Court passed in any suit, appeal or proceeding declaring title to and, or possession of any land.
Section 56.‑No party to a suit, appeal or proceeding in a Civil Court or High Court in respect .of any land shall, notwith standing anything elsewhere, contained in this Act, be entitled to raise before a Revenue Officer, Revenue Authority, Special Judge or the Commissioner or any other officer under sections 19, 40, 41, 49, 51, 53 or 60 any issue in respect of such land, which is substantially in issue in such suit, appeal or proceeding".
Reading these sections together with section 30 it seems clear that notwithstanding section 30, Civil Courts still retain jurisdic tion to declare title or possession of tenants and the Revenue Officer when preparing records of rights or Compensation Assessment‑rolls, under the said Act, cannot ignore the final orders or decrees of Civil Courts in such suits. Indeed, under section 56 no party is even entitled to raise any issue in a proceeding under section 19 of the said Act which is substantially in issue in a suit, appeal or other proceeding had between the same parties in a Civil Court.
In the case of Abdul Mannan and others v. Mafizuddin Bepari and others, reported in (P L D 1959 Dacca 151) my learned brother Chowdhury, J. also took the view that the suit or application or appeal contemplated in section 30 relates to a matter other than a suit for the decision of a question of title and possession.
The learned Advocate appearing for the respondent, however, contended that I must not look merely to the form in which the reliefs had been framed ; but at the substance of the suit which is in reality a suit for the correction of a record of rights prepared under section 17 of the East Bengal State Acquisition and Tenancy Act and against which an appeal actually filed under sub section (2) of section 19 of the said Act, had been unsuccessfully prosecuted. Hence, according to him, the present suit was a suit for the determination of the status of the tenant and the incidents of the holding. Furthermore, the plaintiff having already had recourse to the procedure provided under the said Act should not now be allowed after being unsuccessful therein to adopt this procedure by way of a suit in a Civil Court.
In support of this contention he has relied on a decision of the Calcutta High Court in the case of Bhandi Singh and others v. Ramadhin Roy and another reported in (10 C W N 991) where it was held that where concurrent jurisdiction is conferred to two tribunals, then a litigant, if he has made a choice and availed himself of the procedure provided under a special statute setting up a special tribunal, then he should not again be given an opportunity to litigate the same matter in the ordinary Civil Courts after losing before the Special Tribunal. This view was also' followed by this Court in the case of the Province of East Bengal v. Dewan Abdul Alim, Mutivali reported in (9DLR26).
The learned Advocate also sought to argue that since the East Bengal State Acquisition and Tenancy Act repeald the Bengal Tenancy Act and re‑enacted some of its provisions in a modified form, the modifications made must have been made with some intention. Thus, if the present provisions under section 30 of the East Bengal State Acquisition and Tenancy Act are compared with the provisions of sections 111, and 111‑A of the Bengal Tenancy Act, it will be observed that section 111 barred suits or applications of somewhat the same kind, namely, for the alteration of the rent or the determination of the status of any tenant and section 111‑A provided that any person who was dissatisfied with any entry or an omission from a record of rights, may institute suits for a declaration of his right under Chapter VI of the Specific Relief Act. Hence, it is argued that under section 111‑A a suit for a declaration of title under the Specific Relief Act was maintainable by reason of the provisions of the said proviso ; but since that proviso had been omitted in the State Acquisition Act, the intention of the legislature must have been to take away that right of filing a suit under the Specific Relief Act for such a declaration.
I am unable, however, to agree with this proposition. It is no doubt true that for the interpretation of a particular statute it is permissible to look at the previous state of the law ; but nevertheless it is an equally well established principle that so far as the ouster of jurisdiction of Civil Courts is concerned, the legislature must do so by express provision made in that behalf. The ouster of such jurisdiction is not to be lightly inferred, as was observed by the Judicial Committee in its opinion in the case of The Secretary of State v. Mask & Co. reported in (44 C W N 709).
There is yet another reason for which this argument cannot be accepted, for I find that even under the Bengal Tenancy Act it has been held that the said provisions of section II I only operate as a bar to those specific kinds of suits or applications as have been mentioned therein and not in respect of other kind of suits or applications. Thus, in the case of Maharaj Bahadur Singh v. Binode Behary Choudhury and others reported in (A I R 1936 Cal. 263) the Calcutta High Court held that a suit or proceeding can be stayed under section 111 of the Bengal Tenancy Act only if the suit or application is filed for the determination of the status of any tenant and even in a case where the question of status may have to be gone into, because the defendant has raised, it will not authorise the Court to bar the application or the suit under this section.
The same view was taken by the Calcutta High Court in the case of Kshemananda Kumar v. Rashmaya Haldar, reported in (32 C W N 132) where Rankin, C. J. observed that section 111 of the Bengal Tenancy Act does not mean that in any case in which the tenant chooses to raise a question as to status, the landlord is prevented from taking action under the ordinary law in such matter.
The principle, therefore, appears to me from all these decisions to be that only the specific kinds of suits mentioned in the statute as being barred can be affected thereby and no other suits.
The question then is whether the present suit can come under any one of the categories mentioned in section 30. It is certainly not a suit for the alteration of rent or for the determination of the incidents of any holding. But it is urged that it is a suit for the determination of the status of a tenant. I fail to see how the present can be described to be a suit for the determination of the status of the tenant. There is no dispute that the tenancy is a karsa tenancy. There is no question here as to the nature of the tenancy itself. The question is whether the plaintiff is entitled to claim that right in respect of a particular portion or parcel of land said to have been taken settlement of by him. This is a suit purely for the declaration of his title to the land and not for the determination of any question relating to his status as a tenant.
In this view of the matter, I am of the opinion that the learned Subordinate Judge was entirely wrong in holding that the suit was barred by reason of the provisions of the East Bengal State Acquisition and Tenancy Act.
The next question that falls to be determined is whether there was any abandonment of the tenancy by Someraddin and whether the right, title and interest of the heirs of Someraddin passed by the auction sale in the rent execution case. It is an admitted fact that the heirs of Someraddin were not made parties either to the rent suit or the execution case because it was said their names were not mutated in the landlords' sherista, Somerad din having abandoned the tenancy. It is significant that nowhere has the defendant ever suggested that the landlords ever re‑entered the tenancy, nor do they claim to have obtained the tenancy from the landlord but they based their right purely upon the auction sale. Evidence has been led on both sides to show that the heirs of Someraddin never lived on the land but that they lived with their father at Gabtala in the district of Khulna. The Court of Appeal below has found this as a fact and this Court is not entitled to go behind this finding of fact in second appeal. But even accepting the fact that the heirs of Someraddin did not reside in the holding in question, does that amount to an abandonment of the tenancy either by Someraddin or by the heirs of Someraddin. In my view, it does not. The abandonment of the tenancy is dealt with under section 87 of the Bengai Tenancy Act and subsection (2) thereof expressly provides that although in the case of voluntary abandonment or residence, the landlord may enter on the holding and let it out to another tenant or take it to cultivation under himself, yet before he does that, he must file a notice in the prescribed form in the Collector's office saying that he has treated the holding as abandoned and is about to enter on it accordingly and the Collector shall cause the notice to be published in the prescribed manner. There is no evidence in the present case that any such notice was ever filed with the Collector or that any such notice was ever published.
The learned Advocate, however, contends that this section is not exhaustive and apart from this, there can also be an abandonment. But even accepting that there can be an abandonment apart from the provisions of this section 87 of the Bengal Tenancy Act I am unable to go so far as to say that mere non‑residence is sufficient to warrant the inference of abandonment. The Bengal Tenancy Act has, of course, not given any definition of the word "abandonment". But to my mina the word connotes the idea of a tenant vacating the land with the intention of never returning to it. Mere temporary absence or absence in circumstances which cannot lead to the inference that the tenant had‑departed from the land without caring as to what happens thereto thereafter is not sufficient to warrant the inference of abandonment. Thus, if a tenant leaves the land for a pilgrimage with the intention to return thereto but his intention remains unfulfilled due to some accident for a large number of years, it will not, to my mind, be sufficient to hold that the land has been abandoned by the tenant. It was, therefore, in my view, necessary for the defendant to show some more positive act than mere non‑residence to establish abandonment. It is significant that no attempt was made by the defendants to show that the heirs or their father Someraddin had never paid any, rent for this land to the landlords after their alleged abandonment. Indeed, the rent rolls of the landlords were not even produced before the Court.
In these circumstances, I am unable also to agree with the learned Subordinate Judge that the finding of non‑residence of the heirs of Someraddin in the village Charbaleshwar amounted to an abandonment of the tenancy. Hence, the heirs of…
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