Case: Subodh Gopal Bose Vs. Ajit Kumar Haldar And Others

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 S. 4. The relevant provisions of that Section are as follows :"4. For 37 of the said Act, the following Section shall he substituted namely :-"37. (1) The purchaser of an entire estate in the permanently settled districts of West Bengal sold under this Act for the recovery of arrears due on account of the same, shall acquire the estate free from all encumbrances which may have been imposed after the time of settlement and shall be entitled to avoid and annul all tenures holdings and leases with the following exceptions:-(a) tenures and holdings which have been held from the time of the permanent settlement either free of rent or at a fixed rent, or fixed rate of rent, and(b) (i) tenures and holdings not included in exception (a) above made, and(ii) other leases of land whether or not for purposes connected with agriculture or horticulture,existing at the date of issue of the notification for sale of the estate under this Act:* * * *(2) For the purposes of this Section:(a) (1) tenure includes a tenure as defined in the Bengal Tenancy Act, 1885,* * * *"7. By virtue of S. 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 defendants 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 S. 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 S. 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 S. 37 are attracted. Section 7 contemplates three kinds of cases, namely, (1) a pending suit or proceeding for the ejectment of any person in respect of his tenure or lease-hold, irrespective of whether or not the lease was for purposes connected with agriculture or horticulture; (2) pending appeal or application for review or application for revision arising out of (l) above, this appeal or application being one by an unsuccessful plaintiff and not by all unsuccessful defendant, because the abatement contemplated by the Section intended to close the door against an attack on preexisting title and not against defence of such a title, and (3) a final decree or order made for ejectment. A decree or order against which an appeal has been filed and has been pending on the date of the commencement of the Act, if it is by the unsuccessful plaintiff or applicant, would be covered by S. 7 (1) (b); whereas a decree or order for ejectment which has become final because either no appeal was preferred against it, or if there had been one, it has been finally decided, would be within the purview of S. 7 (2). If such a final decree for ejectment has been executed by delivery of possession of the land in question, before the commencement of the Amending Act, the legislature did not intend to reopen such closed transactions. But except those, in all the categories (1) to (3) above, if the suit, appeal, or proceeding could not have been validly instituted, preferred or made, in terms of the Amending Act, all those pending suits or appeals or applications would abate according to S. 7 (l) (a) and (b); and the decrees would become void according to S. 7 (2).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 S. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 S. 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 S. 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 S. 37 are attracted. Section 7 contemplates three kinds of cases, namely, (1) a pending suit or proceeding for the ejectment of any person in respect of his tenure or lease-hold, irrespective of whether or not the lease was for purposes connected with agriculture or horticulture; (2) pending appeal or application for review or application for revision arising out of (l) above, this appeal or application being one by an unsuccessful plaintiff and not by all unsuccessful defendant, because the abatement contemplated by the Section intended to close the door against an attack on preexisting title and not against defence of such a title, and (3) a final decree or order made for ejectment. A decree or order against which an appeal has been filed and has been pending on the date of the commencement of the Act, if it is by the unsuccessful plaintiff or applicant, would be covered by S. 7 (1) (b); whereas a decree or order for ejectment which has become final because either no appeal was preferred against it, or if there had been one, it has been finally decided, would be within the purview of S. 7 (2). If such a final decree for ejectment has been executed by delivery of possession of the land in question, before the commencement of the Amending Act, the legislature did not intend to reopen such closed transactions. But except those, in all the categories (1) to (3) above, if the suit, appeal, or proceeding could not have been validly instituted, preferred or made, in terms of the Amending Act, all those pending suits or appeals or applications would abate according to S. 7 (l) (a) and (b); and the decrees would become void according to S. 7 (2).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 S. 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.