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Himatsingka Timber Ltd. Vs. Kumudini Dutta - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberSupreme Court Appeal No. 1 of 1952
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 109 and 110; Constitution of India - Article 133; GoalparaTenancy Act; Transfer of Property Act; Limitation Act - Sections 5 and 12
AppellantHimatsingka Timber Ltd.
RespondentKumudini Dutta
Appellant AdvocateS.M. Lahiri and P. Chaudhuri, Advs.
Respondent AdvocateS.K. Ghose, Adv.
DispositionPetition dismissed
Excerpt:
- .....section 110 c. p. c. or sub-clauses (a) and (b) of clause (1) of article 133 of the constitution. special leave is sought on the ground that all the questions which arise are questions of wide general importance. 8. the land in suit was purchased by the petitioners from the previous tenant kusumbala for rs. 362/- on 3-4-36. on 9-4-36 they applied to the landlord for a settlement and got it with permission to build on the land. the arrangement was evidenced by amolnama ex. 1 dated 9-4-36. the amokter of petitioners when deposing as a witness on their behalf admitted that the land had been used for stacking timber though it had been taken for building houses and that there had been no cultivation on it since 1936. the courts below found concurrently that the tenancy was for residential.....
Judgment:

Ram Labhaya, J.

1. This is a petition for leave to appeal to the Supreme Court under Article 133 of the Constitution of India read with Section 109, Civil P. C. from the decree of this court in Second Appeal No. 73 of 1950.

2. The suit out of which this petition arises was for ejectment of the company (M/s. Himat-singka Timber Ltd.) from the land in suit measuring about 14 K. 15 D. The land was

admittedly situated within the limits of Dhubri Municipality. Before instituting the suit the plaintiff had sent a notice to the defendants requiring them to deliver possession within 15

days from the date of the receipt of the notice. The defendants did not deliver possession. They resisted the suit. The main ground of defence was that the notice of ejectment was not valid

as the tenancy was governed by the provisions contained in the Goalpara Tenancy Act. The notice was admittedly valid if the Transfer of Property Act applied.

3. The learned Munsiff found that the Goal-para Tenancy Act had no application to the

case as the tenancy was for residential purposes. The learned Subordinate Judge on appeal found that the appeal was barred by time and while dismissing it on that ground, he recorded a finding on the main question involved in the case. In his view the Goalpara Tenancy Act applied to the case notwithstanding the fact that the land in suit was let and occupied for residential purposes,--a fact which according to him had been admitted by the defendants. His reason for applying the Goalpara Tenancy Act to the tenancy was that the plaintiff was an occupancy tenant of a larger area under the Gauripur Estate. The suit land formed a small part of that land and as such, though homestead land it would be governed by the same law which applied to the

entire tenancy of which the plaintiff was the

occupancy tenant.

4. The defendants appealed to this court. The case was finally disposed of by a Special Bench, which dismissed the appeal. The appeal filed by the defendants in the lower appellate

court was found to be time barred on the basis

of the Assam view. The majority view further

was that the lower appellate court had declined to condone delay in filing the appeal and that the discretion in this respect had been correctly examined. My reading of the judgment of the lower appellate court on this point was that it had omitted to consider the question whether

delay could be condoned under Section 5 in the

circumstances of this case.

5. The appeal, however was not disposed of on the question of limitation alone. It was also held that though the mere fact that land was within the limits of Dhubri Municipality would sot take it out of the ambit of the Goalpara Tenancy Act, its applicability was not attracted as the land in suit was let out and occupied for residential purposes and not for purposes of agriculture or for purposes subservient to agriculture.

6. The decision of this court is sought to be

challenged on all the three points decided against the petitioners. The statement contained in Para. 12 of the petition to the effect that the petitioner's counsel 'did not and had no opportunity to advance any argument on the merits of the case' is not accurate & the learned counsel has not relied on it.

7. The case admittedly does not fulfil the requirements of law as regards valuation. It could not, therefore, be placed under Paras. 1 and 2 of Section 110 C. P. C. or sub-clauses (a) and (b) of Clause (1) of Article 133 of the Constitution. Special leave is sought on the ground that all the questions which arise are questions of wide general importance.

8. The land in suit was purchased by the petitioners from the previous tenant Kusum

Bala for Rs. 362/- on 3-4-36. On 9-4-36 they applied to the landlord for a settlement and got it with permission to build on the land. The arrangement was evidenced by Amolnama Ex. 1 dated 9-4-36. The Amokter of petitioners when deposing as a witness on their behalf admitted that the land had been used for stacking timber though it had been taken for building houses and that there had been no cultivation on it since 1936. The courts below found concurrently that the tenancy was for residential purposes. This finding on a question of fact was not challenged before us on any ground. On the basis of this finding it was held that the land in suit having been let and occupied for residential or business purposes was not land within the meaning of the expression 'land' as defined in the Goalpara Tenancy Act. This Act, therefore, did not govern the relationship of the parties. Mr. Lahiri contended that the land in suit was included in the holding of an agricultural raiyat (plff. opp. party). The holding was partly agricultural & partly homestead. A portion of the holding used as homestead was let out for residential purposes by the occupancy tenant to an under-raiyat. Plff.'s holding would be governed by Goalpara Tenancy Act. The homestead part when sublet even for residential purposes, should be governed by the same Act and not by the Transfer of Property Act. He relied on certain decisions from the Calcutta High Court in cases to which the Bengal Tenancy Act was applied. These cases were distinguished on the ground that the provisions of the Bengal Tenancy Act were materially different from the relevant provisions contained in the Goalpara Tenancy Act with which we were concerned.

9. It is contended that the question whether the tenancy in this case was governed by the provisions contained in the Goalpara Tenancy Act or the Transfer of Property Act is a question of great public importance and therefore, the case should be certified as 'otherwise fit for appear to the. Supreme Court. Importance is attributed to the question on the alleged difference of opinion between the Calcutta High Court and this Court. We do not think this is a case of any conflict of views between the two High Courts. The series of cases culminating in--'Arun Kumar v. Durga Qharan', 45 Cal W N 805 were distinguished on the ground that the view in the last and the most important case was based on the definition of the expression 'under-raiyat' as given in the Bengal Tenancy Act. Our conclusion in the case before us was that the relevant provisions of the Goalpara Tenancy Act were different. This Act defined land while the Bengal Tenancy Act did not. The definition of 'under-raiyat' was also different from that in the Bengal Tenancy Act. Land even in the possession of an under-raiyat in order that it should be 'land' within the meaning of Goalpara Tenancy Act should be let out for agricultural purposes or for purposes subservient to agriculture. The provisions of the Goalpara Tenancy Act which were interpreted by this court being different from those of Bengal Tenancy Act, there was no room 'for conflict. The Calcutta view was merely distinguished.

10. In the absence of any conflict between the two High Courts the question whether the Goalpara Tenancy Act applied to the tenancy or not cannot be regarded as a question of

great or general public Importance. The decision of the question depended on the interpretation of the definition of the expressions 'land' and 'under-raiyat' given in the Act. These definitions are in very clear language. Their interpretation presents no real difficulty and there has been no divergence of judicial opinion on this point. There is complete agreement so far as this court is concerned. The question involved, therefore, cannot be regarded as one of great importance. It is possible that this question may arise in some other cases but that by itself would not justify a certificate under Clause (c) of Section 109 C. P. C. or of Article 133 of the Constitution of India. The decision may affect incidentally the rights of some persons similarly situated as the petitioners if there are any. But if that were enough for the grant of special leave it will have to be granted in every case where a section of one or other of the Acts has been interpreted. As held in--'Mritunjoy Praharaj v. Balmakund'. AIR 1921 Pat 33 it is not enough for granting special leave to appeal under Section 109 that a decision upon the construction of a section of a Tenancy Act such as Bengal Tenancy Act or Orissa Tenancy Act or any other, will affect incidentally the rights of those who have holdings or tenures subject to one or other of those Acts.

In--'Mahesh Pratap Narain Singh v. Mt. Sadhana', AIR 1943 Oudh 266 the plaintiff petitioner sued for possession of certain houses in Bazar Lalganj which was a part of his taluqdari village on the ground that under custom the raiyats and shop-keepers living in bazar Lalganj had no right to sell shops and houses without his permission and the sales made by the occupiers of those shops and houses amounted to an abandonment and gave no rights to the vendees, who were consequently liable to ejectment by the plaintiff. It was held notwithstanding that the decision in the case could be used as a precedent in cases between the landlord and other tenants in bazar Lalganj that the question could not be regarded as one of great public or private importance. Here it has been claimed that there is a vast area of land within the municipality of Dhubri which belongs to the Gauripur Raj Estate. It has been settled with tenants who have acquired occupancy rights and these tenants have sublet portions of their lands to under-raiyats who are in the position of the petitioner. It is not certain how numerous the persons in the position of the petitioner are. The statement is somewhat vague but even if there are under-raiyats or sub-tenants in the position of the petitioner under other occupancy tenants or even under the plaintiff, the question could not be regarded as one of great general importance in view of the two decisions referred to above.

11. Mr. Ghose, the learned counsel for the Opposite Party has contended relying on--'Banarsi Parshad v. Keshi Krishna', 28 Ind App 11 (PC) and--'Radha Krishna Aiyar v. Swaminatha Aiyar', 48 Ind App 31 (PC) that special leave can be granted in cases in which point in dispute is not measurable by money though it may be of great public or private importance. He points out that these requirements are not fulfilled as the value of the subject-matter in dispute is ascertainable in money and the question involved is not of any great general importance. We have come to the conclusion

for reasons given above that the question is not of any great general importance so as to attract the provisions contained in Clause (c) of Section 109 C. P. C. or Article 133 of the Constitution. The fact that the value of the subject-matter in dispute is ascertainable in money and is hot at all considerable lends additional force to that conclusion, though it may not be said that special leave cannot be allowed in any case if the value of the subject-matter is ascertainable in money. This question does not fulfil any of the two requirements which would justify the grant of special leave.

12. The authorities relied on by Mr. Lahiri

--'Gangaram Madhorao v. Bapuji Ramji', AIR 1943 Nag 76,--'Jivangiri Guru v. Gajanan Narayan', AIR 1927 Bom 19,--'Sein Htaung v. V. E. A. Chettyar Firm', AIR 1936 Rang 65 do not assist him. In all these cases, there was divergence of judicial opinion. The questions involved were also found to be of great public importance. The case before us does not fulfil these requirements.--'Ram Kumar v. Mahpal Singh', AIR 1938 All 188 also is easily distinguishable.

13. On the question of limitation the view of this court differs from the view that has prevailed in the Calcutta High Court for quite a long time. It was held in--'Governor-General in Council v. Jesraj Tilakchand', AIR 1950 Assam 83 that

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'under Section 12 the time taken from the date of the pronouncement of the judgment to the date of the signing of the decree, cannot be properly excluded as time requisite for obtaining a copy of the decree'.

The view that has prevailed in the Calcutta High Court is to the contrary. But the fact, that different High Courts hold divergent views regarding the question involved is by itself no ground for certifying the case as fit one for special leave. Vide--'Bishan Dass v. Nand Ram', AIR 1936 Pesh. 194. In--'Mahomed Mahrabkhan v. Dur Mohammad Khan', AIR 1937 Sind 217 it was laid down that if a Full Bench decision of one Court differs from the decision of a Full Bench of another court, this by itself is not sufficient ground for certifying that the case is a fit one for special leave. In this case there is no divergence of opinion in this court. The view enunciated in--'A. I. R. 1950 Assam 83', a Division Bench decision, has been adhered to in this case by all the Judges sitting together and constituting a Special Bench.

14. So far as condonation of delay under Section 5 is concerned, the view of the majority of the judges constituting the Special Bench was that the learned Subordinate Judge had declined to condone delay in the circumstances of this case. The learned Judges also found that the exercise of this discretion was proper: This aspect of the question of limitation merely involves a simple question of fact as to whether there was sufficient cause for condonation of the delay or not and does not at all attract the applicability of Clause (c) of Section 109 or Article 133 of the Constitution. Mr. Lahiri referred us, to certain observations of Naik J. in--'Narhari v. Shankar', 1950 SCR (Hyd) 754 on the point The learned Judge who delivered the judgment observed that 'the High Court was wrong in not giving to

the appellant the benefit of Section 5, Limitation?

Act in view of the conflict of decisions regarding this question not only in the High Court of the State but also among the different High Courts in India.' These remarks have no application to the facts of the present case. The question that arose was whether the petitioner when appealing to the lower appellate court was actually misled by the Calcutta practice. On this question of fact the view of the majority of this court was against him. My interpretation of the lower appellate court's judgment was that it did not contain any decision on the question whether there had been any misleading by the Calcutta view. Even this difference in the interpretation of the judgment does not make the question as one of any great general importance.

15. Another reason why both aspects of the question of limitation taken together should not form the basis of special leave in this case is that the petitioners' appeal has been disposed of not on the ground of limitation alone but on the merits. They cannot succeed without showing that his tenancy was governed by the provisions contained in the G. T. Act. That question has been decided against them and leave cannot be allowed on that point. The question of limitation, therefore, is of no practical importance in this case. A decision favourable to the petitioners would have entitled them to have his case disposed of on the merits and this has been -done. In point of fact the petitioners have not at all suffered by an adverse decision on the question of limitation.

16. The learned counsel for the petitioners has also argued at the hearing that a question of registration was involved in the case. He has pointed out that the Amolnama Exh. 1 which has been referred to and relied on for a finding that the purpose of the tenancy was residential, required compulsory registration & could not even be used for ascertaining the purpose of the tenancy. This is a new question. This was not raised in the courts below. It was not even raised before us at the time of the hearing of the appeal. The question has also not been raised in the petition and the grounds on which it was based. It was raised for the first time at the hearing of the petition. The idea is to dispute the purpose of the tendency which remained undisputed all along till the disposal of the appeal by this court. It is an attempt to set up a case inconsistent with the one originally set up and dealt up. This question cannot surely be utilised for supporting a prayer for special leave.

17. The petition fails and is dismissed with costs. Hearing fee Rs. 32/-.

Deka, J.

18. I agree.


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