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

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 S. 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 S. 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 1/6th 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 S. 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, S. 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 Courts 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 months 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 followingdebtor files a petition, praying for one months time to bring a stay order and for stay of process in the meantime. Heard learned lawyer. Recall and put up in the presence of both parties. InformHigh 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 Ss. 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 S. 7 (2) of the Amending Act, and that S. 7 (1) (b) had no application. It also took the view that S. 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 S. 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.

Reasoning:
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.