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Petitioner: KALA GAZI VS Respondent: ABDUL GAFUR BHUIYAN
P L D 1960 Dacca 808
P L D 1960 Dacca 808
Before Rahman, J
KALA GAZI‑Appellant
versus
ABDUL GAFUR BHUIYAN AND OTHERS‑ ---Respondents
Second Appeal No. 411 of 1958, decided on 8th March 1960.
(a) Bengal Tenancy Act (VIII of 1885), S. 160 (c) "Permanent" qualifies buildings, as well as dwelling‑houses and manufactories.
The word "permanent" placed before the word "buildings" in clause (c) of section 160 of the Bengal Tenancy Act, 1885 qualifies not only buildings but also dwelling‑houses and manu factories as well. In order, therefore, to attract section 160 of the Act, in case of a dwelling‑house, the dwelling‑house must also be a permanent dwelling‑house and not merely a but or a tin shed.
(b) Words and phrases‑"Or"‑Does not necessarily signify a disjunctive sense.
The word "or" does not necessarily always signify a dis junctive sense. It may also be read conjunctively.
(c) Bengal Tenancy Act (VIII of 1885), S. 167‑Does not indicate that notice must also be served on notice‑giver himself if he happens to be an under‑raiyat in holding purchased by him.
(d) Precedents‑Earlier Rulings of Calcutta High Court -Whether binding on High Court of East Pakistan.
Even though the decisions of the Calcutta High Court are no longer binding on the High Court of East Pakistan, yet those decisions which were given in respect of laws which then applied and still do apply to East Pakistan have established a basis for the regulation of rights, liabilities and interests over a large number of years and the High Court of East Pakistan would be reluctant to, bring in a new order and make a sudden change in the interpretation of that law applies to East Pakistan.
Syed A. N. M. Nasiruddin for Appellant.
A. Salam, A. Wahud Mia for Respondent No. 1.
JUDGMENT
This appeal is against the decision of the learned District Judge, Tippera, affirming the judgment and decree passed by the Munsif, 2nd Court, Comilla, in a suit for recovery of khas possession on declaration of the plaintiff's raiyati right in the suit lands.
2. This suit was instituted by respondent No. 1 upon the allegations that, according to him, the raiyati jote recorded in C. S. Khatian No. 36 of Mouza Nij Mahichail under P. S. Chandina including the tenanted lands of Khatian No. 37 originally belonged to one Kafiluddin Majumdar and that the jama of the jote was Rs. 10‑10‑6. This raiyati jote was put to sale in execution of a rent decd in Rent Execution Case No. 63 of 1952 at the instance of the superior landlords, Sachar Debottar Wards Estate, and was auction‑purchased by the plaintiff on the 2nd December 1952. The sale was subsequently confirmed, he took delivery of posses sion through Court on the 31st of August 1953, and then pro ceeded to annul the under‑raiyali jote by starting a non‑judicial Miscellaneous Case, being Miscellaneous Case No. 2 of 1954. He served notices under section 167 of the Bengal Tenancy Act upon defendants Nos. 1, 2, 9 to 12 and tine predecessor‑in‑interest of defendants Nos. 3 to 8 and 13 to 15 who are part‑purchasers of the under‑raiyati. Having thus annulled the korfa jote, the plaintiff claimed to have become the owner of the lands of Khattan No. 37 and the defendants had ceased to have any further interest in the under‑raiyati. After such annulment, some of the defendants, namely, 13 to 15, recognised the plaintiff as the owner of the jote and prayed for fresh settlement with respect to their purchased lands and executed a kabulfyat with respect to 45 acres of land at a rental of Rs. 6‑9‑0 and paid a nazar of Rs. 50 for such fresh settlement; but, in spite of repeated demands, the other defendants were not giving up possession of the Ka Schedule lands to the plaintiff and hence, the suit.
3. The suit was contested by defendant No. 9 alone and his defence, inter alia, was firstly, that the plaintiff who happens to be a nephew of Kafiluddin Majumdar was merely his benamdar; secondly, that no notice under section 167 of the Bengal Tenancy Act had been served on the defendants; thirdly, that Kafiluddin Majumdar was never the sole owner of the jote and, hence, the rent decree obtained against Kafiluddin Majumdar alone, as also the sale in execution, and did not entitle the plaintiff to the benefit of Chapter XIV of the Bengal Tenancy Act, for, is was merely a money decree, the other co‑owners of Kafiluddin Majumdar having been left out of the suit. Lastly, it was contended that the under‑raiyati of one Dhan Gaji which was part‑purchased by the said defendants was, according to local custom, heritable and transferable and therefore, was a protected interest under section 160 of the Bengal, Tenancy Act.
4. Both the Courts below held against the defendants on all points and decreed the suit in full declaring his right and directing that khas possession be given by evicting the defendants there from.
5. In this appeal also, the same points have been re‑urged and, in addition thereto, two entirely new points have been raised. Indeed, at the time of the hearing a notice of an additional ground has also been filed. According to this additional ground which has been strenuously pressed before me, it is contended that whatever might have been the position before, the defendant's status was raised to that of a raiyat after the coming into force of the East Bengal State Acquisition and Tenancy Act, 1950, and, by virtue of the provisions of the said Act, the defendant was not liable to eviction.
6. Now section 85 is contained in Part V of the said Act and section 79 which is the first section of the said Part provides that that Part of the said Act shall not come into operation in any particular area unless a notification has been published under subsection (2) of section 43 declaring that a Compensation Assessment‑roll in respect of such area has been finally published and then too that Part shall come into force on and from the first day of the agricultural year next following the date of publication of such notification in the Official Gazette.
7. No such notification has been produced before me and, so far as I am aware, this Part of the East Bengal State Acqui sition and Tenancy Act has not come into force in the District of Tippera as yet. In any event, it appears to me that the advantage of these provisions cannot be taken by the appellant, for, in the present case, the suit was filed on the 1st of February 196, when the provisions of the East Bengal State Acquisition and Tenancy Act did not admittedly apply in this area, as the general noti fication acquiring the rent‑receiving interests was published after the institution of the suit on the 2nd of April 1956, and came into force from the 14th of April 1956. The rights of the parties in the suit, therefore, were not affected by the subsequent acquisition of these properties and had to be decided on the basis of the law prevailing at the date of the institution of the suit.
8. The next point urged on behalf of the appellant is that there was and could be no annulment of the tenancy, as it was a protected tenancy under section 160, clause (c) of the Bengal Tenancy Act. This is sought to be support by the observations of the Court of Appeal below to the effect that the under‑raiyati comprised two plots one of which, namely, Plot No. 2423, is "a bari." Upon the basis of this, it is urged that clearly the bars meant a dwelling‑house and came within the protection of section 160, clause (c) of the said Act. The Court of Appeal below, however, took the view that since there was no evidence that the bari was of a permanent character, the provisions of the said section were not attracted. It is contended that the learned Judge was wrong in this view, for, the language of section 160 does not indicate that the Legislature had any intention of quali fying the words "dwelling‑house" by saying that it must necessarily be a permanent dwelling‑house.
9. Clause (c) of section 160 of the Bengal Tenancy Act reads as follow :‑---
"Any lease of land whereon dwelling‑house, manufactories or other permanent buildings have been erected, or permanent gardens, plantations, tanks, canals, places of worship or burning or burying grounds have been made."
It is contended that since the word "permanent" is placed before the words "building" only, there can be no justification for saying that it qualifies dwelling‑houses and manufactories as well, for, the words are used in the disjunctive sense and not in the conjunctive sense. The word "or" does not necessarily always signify a disjunctive sense. It may also be read conjunctively. In the present case the decision on which reliance has been placed by the Court below, as also various other decisions of the Calcutta High Court seem to indicate that the Calcutta High Court consistently took the view that the intention of the Legislature by so laying emphasis on the word "permanent" seemed to indicate that the object of the Legislature was to protect only leases on which permanent structures have been erected. Hence, dwelling‑houses must also be permanent dwelling‑houses and not merely huts or tin sheds.
10. The learned Advocate appearing in support of the appeal, however, contends that these decisions should not be taken to be applicable in the present context of things prevailing in this part of the country, for, they were decisions given at a time when the East Bengal State Acquisition and Tenancy Act had not been passed recognising that the tillers of the soil had an interest in the land. These interpretations were given when the social pattern of the country was different and the law of the land was that under‑raiyatis as such were not to be given any interest on the land except under special circumstances.
11. I regret I am unable to accept this rather ingenious argument. It is for the Legislature to decide what should be the policy of the law. Sitting in this Court, I merely interpret the law according to the language used by the Legislature. The Legis lature has not changed the language of section 160, clause (c) of the Bengal Tenancy Act even td this day. It may be that when the provisions of the Fast Bengal State Acquisition and Tenancy Act do become fully operative, the Bengal Tenancy Act will stand repealed but as long as the Bengal Tenancy Act is a valid law, I must interpret it according to the language used in the legislation itself. This language has remained unaltered since the decision of the Calcutta High Court referred to by the Appellate Court. I see, therefore, no reason to come to a different interpre tation now at this stage. It must be remembered that even though the decisions of the Calcutta High Court are no longer binding on this Court, yet those decisions were given in respect of laws which then applied and still do apply to this part of the country. They have established a basis for the regulation of rights, liabilities and interests in these parts over a large number of years and this Court, in my view, would be reluctant to bring in a new order and make a sudden change in the interpretation of that law applying to this part of the country. I find myself, therefore, unable to come to a different conclusion in the present case.
12. The position in which the words have been used in the said section seems, in my view, to indicate that the intention of the Legislature was to protect only those tenants who were really settled on the land by making their permanent dwelling‑home thereon and not merely those who stay on the land for a short while in temporary structures.
13. It may also be stated here that this point with regard to the protection under section 160 of the Bengal Tenancy Act was not taken in this specific form in the Courts below. The learned Advocate, however, has urged that since the question has now been raised and dis cussed, if there is any want of evidence as to the exact nature of the dwelling‑house, that question may be remanded to the Court below for consideration after taking further evidence. I am not, however, inclined to give the defendant a second opportunity of agitating this question. If he wished to rely upon the provisions of clause (c) of section 160 of the Bengal Tenancy Act, it was for him to show that his dwelling‑house was of permanent character and entitled, according to the accepted interpretation of the said section, to protection from eviction. He not having availed himself of this opportunity, the Court cannot now allow him a further opportunity to do so at this late stage.
14. The learned Advocate next argued that the annulment was not a valid annulment, since no notice was admittedly served by the plaintiff, who was himself apart‑purchaser of the under- raiyati, on himself annulling his own under‑raiyati. Again, I find myself unable to agree with the contention that any such notice was necessary. The language of section 167 does not indicate that the notice must also be served on the notice giver himself if he happens to be an under‑raiyat in the holding purchased by him. In such cases, I am of the view that his own under‑raiyati disappears by reason of its merger with the higher interest purchased in the Court sale. In any event, this again is a new point which does not appear to have been taken in any of the Courts below. Hence, it cannot be allowed to be taken now for the first time in Second Appeal.
15. The annulment itself, it appears, was effected on the 23rd February 1954, through the Court and, therefore, there was also a presumption as to the regularity of official acts and I must take it, unless the contrary is proved, that the official acts were regularly performed. There is no evidence to rebut the presumption in the present case. For this reason, too, I am of the opinion that the annulment of the incumbrances, namely, the under‑raiyati holdings, was a valid one and put an end to the tenancy long before any question of the application of the East Bengal State Acquisition and Tenancy Act arose.
16. For these reasons, I am of the opinion that the Courts below rightly decided this case and there is no ground which calls for interference in this matter.
17. This appeal is accordingly dismissed with costs. The connected Rule staying further proceedings in Rent Execution Case No. 37 of 1957 will also now stand discharged but there will be no order for costs in the Rule.
K. B. A. Appeal dismissed.