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Kunja Behari Barman and ors. Vs. Mritunjoy Prosad Roy Choudhury and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Case NumberCivil Rules Nos. 345 and 346 of 1949
Judge
Reported inAIR1950Cal54
ActsBengal Agricultural Debtors Act, 1936 - Section 37A, 37A(2) and 37A(4); ;Limitation Act, 1908 - Sections 22, 29, 29(2), 37A and 37A(2)
AppellantKunja Behari Barman and ors.
RespondentMritunjoy Prosad Roy Choudhury and ors.
Appellant AdvocateS.K. Das and ;Binode Behari Haldar, Advs.
Respondent AdvocateChandra Sekhar Sen and ;Jajneswar Mozumdar, Advs.
Excerpt:
- .....these revision cases came on for hearing before mukherji j. by his order dated 29th june 1948 the learned judge allowed these applications. in the course of his judgment it was observed that the real point for decision was not when sanction of the board of revenue was obtained to the grant of the two leases in favour of opposite parties nos. 6 and 7 but when there was a completed agreement for a lease. the rules were accordingly made absolute and the cases were sent back to the learned district judge for disposal according to law and in accordance with the directions contained in the judgment. the learned assistant government pleader who appeared on behalf of the court of wards did not then raise any objection that there was an omission in the revision petitions to mention the correct.....
Judgment:
ORDER

G.N. Das, J.

1. These two Rules are at the instance of the applicants under S. 37A, Bengal Agricultural Debtors Act. The facts are shortly these : The petitioners are agricultural tenants under the Bhowanipur Wards Estate the proprietors whereof are opposite parties Nos. 1 to 8 represented by the Manager, Court of Wards. The petitioners held two tenancies and rents having fallen into arrears at the instance of the Bhowanipur Wards Estate two certificates for rent were issued and in execution of these certificates the two tenancies were brought to sale on 24th January 1938. Possession through Court was taken on 17th June 1939. Section 37A, Bengal Agricultural Debtors Act was inserted by Bengal Act, II [2] of 1942, and came into force by a Notification on 18th June 1942. On 4th June 1943 two applications which have given rise to the present revision cases were filed by the debtors under Section 37A of the Act. These two applications were registered as cases Nos. 625 (S) of 1948 and 626 (S) of 1943 of the Special Debt Settlement Board of Diamond Harbour, The parties impleaded in these applications were the disqualified proprietors, namely opposite parties Nos. 1 to 8, represented by the Manager, Court of Wards. On an objection raised by the Manager, Court of Wards, opposite parties Nos. 6 and 7 who are two of the disqualified proprietors were added as parties to the application, on 7th September 1945. These two opposite parties filed an objection on the ground that they were lessees under the Wards Estate, the leases having become operative on 16th August 1939, that is, before the relevant date mentioned in Section 37A of the Act. On 24th November 1945 the Special Debt Settlement Board dismissed the applications solely on the ground that the certificate-holder who was the auction-purchaser was not in possession on or after relevant date, that is, 20th December 1939. The other objections raised were overruled by the Debt Settlement Board. Against the order of the Debt Settlement Board the petitioners took two appeals to the Appellate Officer. These were numbered as Debt Settlement Board Appeals Nos. 132 of 1945-1946 and 134 of 1945-1946. On 27th June 1946 the Appellate Officer allowed these appeals. Against the order of the Appellate Officer four petitions in revision were filed before the District Judge, two of these ware filed by the Court of Wards being numbered as 150 of 1946 and 152 of 1946. Two other petitions which were filed by opposite parties NOS. 6 and 7 were numbered as 151 of 1946 and 153 of 1946. By an order dated 23rd September 1947, the District Judge allowed all these petitions being of the opinion that the leases in favour of opposite parties NOS. 6 and 7 were completed on 16th August 1939 and as such the applications under Section 37A could not be maintained. Against the order of the District Judge the petitioners filed only two petitions in his Hon'ble Court. On these petitions two Rules were issued by Mukherji J., being numbered as Civil Revision cases NOS. 2067 of 1947 and 2068 of 1947. It appears that in the petitions which were filed in this Court the number of the corresponding revision petitions before the District Judge was given respectively as 150 of 1946 and 151 of 1946. The corresponding numbers of the appeals before the Appellate Officer were given as 132 of 1945-46 and 134 of 1945-46. It would appear, therefore, that in the petitions filed there was a mistake in not putting down the numbers of all the revision cases which were filed before the District Judge but the number of the appeals which were filed before the Appellate Officer was correctly given in both the petitions. These revision cases came on for hearing before Mukherji J. By his order dated 29th June 1948 the learned Judge allowed these applications. In the course of his judgment it was observed that the real point for decision was not when sanction of the Board of Revenue was obtained to the grant of the two leases in favour of opposite parties NOS. 6 and 7 but when there was a completed agreement for a lease. The Rules were accordingly made absolute and the cases were sent back to the learned District Judge for disposal according to law and in accordance with the directions contained in the judgment. The learned Assistant Government Pleader who appeared on behalf of the Court of Wards did not then raise any objection that there was an omission in the revision petitions to mention the correct numbers of the corresponding revision petitions before the District Judge. The whole case was heard on the merits and as I have already observed an order in favour of the present petitioners was made by the learned Judge.

2. After the matter was received back on remand by an order dated 10th January 1949 the learned Additional District Judge was of the opinion that the leases in favour of opposite parties NOS. 6 and 7 were not completed before 7th July 1940, that is, still after the relevant date. The learned Additional District Judge, however, went on to observe that the applications of the petitioners before the Debt Settlement Board were barred by limitation, opposite parties Nos. 6 and 7 having been added as parties to the proceedings after the lapse of the period of one year mentioned in Section 37A (2) of the Act. Against the order of the learned Additional District Judge the debtors moved this Court and obtained two Rules which are numbered as 345 and 346 of 1949.

3. Mr. S. K. Das appearing on behalf of the petitioners has contended that the learned Additional District Judge was not entitled to go beyond the order of remand made by this Court and his finding on the question of limitation was therefore uncalled for and the learned Additional District Judge should have dismissed the petitions which were filed before him by the Court of Wards and by opposite parties NOS. 6 and 7.

4. Before I deal with this contention it is necessary to consider two preliminary objections raised on behalf of the Court of Wards by the learned senior Govt. Pleader appearing on behalf of the Court of Wards.

5. The two preliminary objections are : (1) that no order can be passed in these revision cases because the names of opposite parties NOS. 6 and 7 appear in the revision petitions as Wards of Court represented by the Manager, Court of Wards, and not in their personal capacities, notices of the Rule were however served on them. It would appear however that in the earlier revision cases, viz. 2067 and 2068 of 1947 opposite parties were described in the same way as they are in the present revision cases. No objection was raised at the time as regards the incorrect description of the opposite parties. When the matter went back before the District Judge no grievance was made that the opposite parties had no opportunity of placing their cases before the Court. The whole case including the defence of the opposite parties Nos. 6, 7 has been heard at all stages of this litigation.

6. In these circumstances I am not inclined to accede to a technical objection like this which would not advance the course of justice.

7. (2) The second objection is that in mentioning the numbers of the revision cases before the District Judge the petitioners have omitted to mention revision cases NOS. 152 and 153. This mistake also appears in the earlier revision cases but the correct numbers of the appeals before the Appellate Officer have been given in the present petitions and they were also given correctly in the earlier revision cases. If the correct numbers of the Debt Settlement Board cases and the correct numbers of the appeals before the Appellate Officer are mentioned, in my opinion, this Court is entitled to consider all the cases which were filed at the instance of the present petitioners and the Court of Warda Rules of procedure are meant not for the purpose of hindering justice. The records were and are now before the Court and I do not feel pressed to deny the petitioners the appropriate relief simply on the ground that somebody entrusted to draft the petitions made mistake in putting down two numbers on the revision petitions. If necessary, I would have allowed the petitioners to amend the present petitions but in my opinion this is not necessary as the correct numbers of the proceed ings before the Debt Settlement Board and before the Appellate Officer have been correctly given.

8. The two preliminary objections raised on behalf of the Court of Wards must therefore be overruled.

9. As regards the merits the learned Additional District Judge has found that the leases in favour of opposite parties Nos. 6 and 7 were completed on 7th July 1940. This finding is based on two important pieces of evidence, viz., the memorandum of the Manager, Court of Wards, dated 16th April 1940 which clearly shows that the leases were not completed on that date and a challan dated 7th July 1940 depositing the requisite amount. The finding of the Additional District Judge is therefore correct on the materials before him.

10. The learned Senior Government Pleader, however, contends that this is not the relevant question for enquiry under Section 37A of the Act. The relevant enquiry is whether the certificate holder was in possession on the relevant date that is on 20th December 1939 This point again was not raised by Assistant Government Pleader before Mr. Justice Mukherjee when the learned Judge heard civil Revision cases Nos. 2067 and 2068 of 1947. But quite apart from this, it would appear from the record that it was assumed before Mukherji J. that possession followed the conclusion of the agreement. As the agreement was not completed till 7th July 1940, the possession of the lessees, opposite parties Nos. 6 and 7 did not begin till after that date. This contention on behalf of the opposite parties must therefore be overruled.

11. The only other question which remains for discussion is the question of limitation. As I have already indicated the question of limitation was not raised at any previous stages. It was, however, after the case had gone back on remand that the learned Additional District Judge thought that the application under Section 37-A was barred by the special limitation contained in Section 37-A (2). Before I deal with this point, I may point out that the learned Additional District Judge was clearly wrong in thinking that the question of limitation in the present case is a pure question of law. Under Section 37-A (2) an application is to be filed within one year of the date when the relevant Act being Act II [2] of 1942 came into force or when possession was delivered to the certificate holder. The learned Additional District Judge seemed to think that the latter date synchronised with the former, an assumption for which there was no foundation in the records. The question of limitation may depend on the date when possession was delivered to the certificate holder. This is essentially a question of fact and in my opinion Mr. Das was right in contending that the question of limitation ought not to have been allowed to be raised at that late stage. But apart from this ground let us see the validity or otherwise of the objection raised by the Court of Wards. I have already said that Section 37-A came into force on 18th June 1942. The application under Section 37-A was filed within time on 4th June 1943. To this application the certificate holders were all made parties. On objection being raised by the certificate holders that they have granted leases to opposite parties NOS. 6 and 7 the latter were impleaded on 7th September 1945 which is more than a year from the date when Section 37-A came into force. It is contended that as opposite parties NOS. 6 and 7 were added as parties on 7th September 1945 the proceedings as against them must be deemed to have commenced on that date. This contention is correct, Act II [2] of 1942 is a local and special Act and the period of limitation applicable would, under Section 29 (2) (a), Limitation Act, be governed, as regards parties added, by Section 22, Limitation Act. In so far as opposite parties NOS. 6 and 7 are concerned, the proceedings must be deemed to have commenced on that date. The question, however, remains whether the application under Section 37-A was a competent application in the absence of the alleged lessees. Rule 77 (a) of the Rules framed by the Local Government under the Agricultural Debtors Act prescribes a form for filing an applications under Section 37-A. This is Form 19A, Appendix A of the revised form states that the names of certain persons have to be mentioned in different columns. Column 3 requires the applicant to state the names and addresses of the decree-holder or the certificate holder. Column 9 requires the applicant to state the names and addresses of the under-raiyats in occupation of the land at the date of sale. Column 10 requires the applicant to mention the names of the present occupiers of land and the date from which and the title under which the occupants are in possession. Columns 11 and 12 require the applicant to mention the names of the landlord and mortgagees who may come within Section 37-A (4) of the Act. Rule 77 (bb) requires notice of the application to be served only on the decree-holders landlords and the mortgagees but not on the under-raiyats or the present ocoupires whose names and addresses are to be mentioned in columns 8 and 10.

12. In the above circumstances it is obvious that in order that an application under Section 37-A may be an effective application all that is necessary is to mention the names of the decree-holder and the landlord and the mortgagees who may come within Section 37-A (4) of the Act. It was not necessary to state in the petition under Section 37 A the names of the alleged present occupiers or of the under-raiyats. The addition of the alleged lessees, opposite parties Nos. 6 and 7 at a date beyond the period mentioned in Section 37-A (2) of the Act does not attract the bar of limitation. The reasons given by the learned Additional District Judge, for allowing the petitions before him cannot, therefore, be sustained.

13. The result, therefore, is that these rules must be made absolute, the order of the Additional District Judge set aside and the applications under Section 37A, Bengal Agricultural Debtors Act are allowed.

14. The petitioners are entitled to their costs in these rules the bearing-fee being assessed at two gold mohurs in each case.


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