Subodh Gopal Bose v. Ajit Kumar Haldar, (SC) BS109708
SUPREME COURT OF INDIA

Before:- B.P. Sinha, C.J.I., J.C. Shah and N. Rajagopala Ayyangar JJ.

Civil Appeal No. 250 of 1961. D/d. 7.5.1963.

Subodh Gopal Bose - Appellant

Versus

Ajit Kumar Haldar and others - Respondent

For the Appellant :- Mr. B. Sen, Senior Advocate (M/s. S. N. Mukerji and R. R. Biswas, Advocates.

For the Respondent :- Mr. N. C. Chatterjee, Senior Advocate, (Mr. P. K. Ghosh, Advocate.

Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950, Sections 4 and 7 - Bengal Land Revenue Sales Act, 1859, Section 37 - Applicability of Act - Scope of - Decree in suit for possession with mesne profits - appeal against decree, pending in High Court when amendment Act passed - Section 4 is retrospective as made applicable to pending litigation - Held, that a pending appeal is a continuation of the suit out of which it arises - Hence, the present suit, which was pending in the High Court on the date the Amending Act came into force, would come within the purview of Section (1)(a) - It would not come under the second category because it was not on appeal by an unsuccessful plaintiff, nor would it come under category (3) above, because the decree passed against the defendant had not become final - Hence the suit pending in the High Court on appeal had abated under Section 7(1)(a) as soon as the Amending Act came into force.

[Para 9]

JUDGMENT

Sinha, C. J. - The main question for determination in this appeal. on a certificate granted by the High Court of Calcutta, is the scope and effect of Sections 4 and 7 of the Bengal Land Revenue Sales (West Bengal Amendment) Act (West Bengal Act VII of 1950) which hereinafter will be referred to as the Amending Act - which came into force on March 15, 1950.

2. The suit out of which this appeal arises was instituted as long ago as December 6, 1945, and has had rather a long and chequered career. The plaintiff, who is the appellant in this Court, instituted the suit for ejectment of the defendants from the disputed property on the ground that he had annulled the defendants' interests, whatever they were, under Section 37 of the Bengal Land Revenue Sales Act (Central Act XI of 1859) by virtue of his auction purchase, on January 6, 1936, of the entire revenue paying estate, Touzi No. 6 of the 24 Parganas Collectorate. After the auction purchase aforesaid, he obtained possession from the Collector in May-June 1936, and thereafter annulled and avoided all intermediary interests except those protected under Section 37 of Act XI of 1859, by appropriate notices, in or about June 1936. The land in dispute was described in the plaint as Mal land of the said Touzi and other Touzies and the plaintiff asked for Khas possession to the extent of his ⅙th share, jointly with the defendants. The suit was contested by the first defendant-respondent on a number of grounds, of which it is necessary to mention only the contention of fact, that the suit lands were not Mal lands, as alleged by the plaintiff and had never been assessed to revenue, nor were they included in the Mal assets of Touzi No. 6 . It was also claimed by the defendants that the lands in dispute were Brabmottar Lakheraj lands which were never within the regularly assessed estate, Touzi No. 6. Hence, the main issue, on question of fact, between the parties was: "Is the land in dispute Mal land of Touzi No. 6 or is it Lakheraj?" On this question, the learned Subordinate Judge, by his judgment and decree dated April 20, 1948, held in favour of the plaintiff and decreed the suit for possession, with mesne profits to be ascertained later. The learned Subordinate Judge held that the land in suit was Mal land of the Touzi No. 6 and other Touzies and that the defendants' interest was not protected from annulment-under Section 37 of the Act of 1859. The first defendant appealed to the High Court in July 1948; and the appeal was pending when the Amending Act was enacted. When the appeal was put up for hearing before a Division Bench on March 8, 1954, the learned Judges thought it necessary to call for a finding on the question whether possession had already been delivered to the successful plaintiff in execution of the decree of the Trial Court, before the Amending Act came into force. This enquiry was instituted in view of the sworn petition filed on behalf of the plaintiff at the hearing in the High Court that he had already obtained possession in execution of the decree on March 29, 1949, and that, therefore, Section 7 of the Amending Act did not render the appeal void. The defendant-appellant in the High Court contested this statement of fact The learned Subordinate Judge submitted a finding to the High Court to the effect that possession of the disputed property had been' delivered to the decree holder, as alleged by him, on March 29 ,1949.

3. The High Court accepted the finding of the trial Court that possession had been delivered to the decree holder in pursuance of the Trial Court's decree The High Court further considered the effect of the proceedings taken at the execution stage. It appears that the plaintiff had made an application for delivery of possession on March 28, 1949, and the following day, on March 29, 1949, the judgment debtor, who had already preferred his appeal to the High Court, Filed a petition to the Court praying for one month's time to bring a stay order from the High Court and for stay of process meanwhile. The learned Subordinate Judge disposed of the petition, in the following terms :

The High Court very elaborately considered the effect of this order with reference to decided cases of different High Courts, and came to the conclusion that the delivery of possession which had been given to the decree holder was without authority and hence a nullity. The High Court then considered the effect of Sections 4 and 7 of the Amending Act and came to the conclusion that the land in dispute being part of a permanent tenure, held rent free (Niskar), was protected under the provisions of the Section aforesaid. The High Court took the view that the decree passed by the Trial Court had become void under Section 7(2) of the Amending Act, and that Section 7(1) (b) had no application. It also took the view that Section 7(1) (a) would apply and on that account the plaintiff would be entitled to refund of the court fees, as the suit had abated. But even so, the High Court was not prepared to accept the position that the defendant was entitled to the benefit of Section 7(1) (a) to the effect that the suit pending at the appellate stage had abated.

4. In the result, the High Court allowed the appeal, set aside the Judgment and decree of the Trial Court and directed that Court to record an order of abatement of the suit and to pass an order for refund of court-fees in favour of the plaintiff. The High Court directed the parties to bear their own costs, both in the Trial Court and in the High Court.

5. On this appeal, it has been pointed out on behalf of the appellant, that the suit when instituted was a good one in view of the provisions of Section 37 of the Act XI of 1859, and that Section 4 of the Amending Act, which amended Section 37 of the main Act would not govern the present controversy for two reasons, namely, (1) that delivery of possession had already been given to the plaintiff in execution of the decree of the Trial Court in his favour, and that, therefore, the controversy had been finally closed in his favour, and (2) because Section 4 was not in terms retrospective. It is true that Section 4 begins with the words "For Section 37 of the said Act the following Section shall be substituted", and then follow the terms of the Section, as is now. Prima facie, therefore, it is prospective In its operation. But when we look to the provisions of Section 7, it becomes abundantly clear, as rightly pointed out by the High Court, that the Section was retrospective in so far as it was made applicable to pending litigations. Section 7 is in these terms:

6. It is common ground that the present suit is one for ejectment in pursuance of Section 37 of Act XI of 1859. Hence. Section 7 (1) (a) comes into operation its will presently appear, Section 7 (1) (a) would not apply to the appeal pending in the High Court. There cannot be the least doubt that the suit was pending in the High Court on appeal at the commencement of the Amending Act, it being well settled that an appeal is a continuation of the original suit. That being so, the question is whether the suit could have been validly instituted had the Amending Act been in operation at the date of the institution of the suit. That brings in the provisions of Section 4. The relevant provisions of that Section are as follows :

7. By virtue of Section 37 (I), as amended, the plaintiff as the purchaser of the entire estate, Touzi No. 6, sold for recovery of arrears on account of that Touzi had acquired the estate free from all encumbrances and was entitled to avoid and annul all tenures, except those detailed in (a) and (b) of that Section. Section 37(1) (a) would not come into operation in this case because the finding is that the defendants had failed to prove the existence of the tenure since the time of the Permanent Settlement. But C1. (b) (i) would apply if it was a tenure in existence at the date of the issue of the notification for the sale of the estate. The defendant's property was a tenure so in existence, on the finding by the High Court that the tenure had been in existence from before 1910.

8. On the facts so found, what is the legal position? The Amending Act of 1950 was intended to grant relief to tenure holders under proprietors whose estates had been sold under the Act of 18.59, if those tenures had not been wiped out as a result of annulment under Section 37 of the old Act, and those annulments had become (sic) accomplished facts before the Amending Act came into force on March 15, 1950. Section 4 grants relief to tenure-holders even in respect of revenue sales held before that date, if the provisions of Section 7 which give retrospective operation as aforesaid to the substantive provisions of the Amending Act, which had extensively cut down the rigours of the old Section 37 are attracted. Section 7 contemplates three kinds of cases, namely,

9. Under which category would the suit in the instant case come? It is well settled that a pending appeal is a continuation of the suit out of which it arises. In other words, the suit is pending on appeal. Hence, the present suit, which was pending in the High Court on the date the Amending Act came into force, will come within the purview of Section 7 (l) (a). It will not come under the second category because it is not on appeal by an unsuccessful plaintiff, nor will it come under category '3 above, because the decree passed against the defendant had not become final in the sense already indicated. Hence, in partial disagreement with the High Court, we hold that the suit pending in the High Court on appeal had abated on March 15, 1950, under Section 7(1) (a) as soon as the Amending Act came into force. In this view of the matter, it is not necessary to consider the effect of the delivery of possession, given as aforesaid, during the pendency of the appeal in the High Court.

10. In the result, the appeal fails and is dismissed, though not for the same reasons as prevailed in the High Court. In view of the fact that the suit has failed on account of the coming into force of the Amending Act during the pendency of the litigation, there will be no orders as to costs in this Court also.

Appeal dismissed.