C.N. Laik, J.
1. This Second Appeal by the plaintiff is directed against the judgment and decree of the learned Subordinate Judge, 5th Court, Alipore passed in an appeal against the decree of the learned Munsif dismissing the plaintiff appellant's claim for khas possession of the disputed property and for mesne profits.
2. What is contended for, by Mr. Abinash Chandra Ghosh, the learned Advocate appearing on behalf of the appellant, an authority in the tenancy laws, is, that the Courts below committed an error of law in holding that the order of conversion passed by the Collector, 24-Parganas on July 11, 1952 under the provisions of Section 72, chapter X of the West Bengal Non-agricultural Tenancy Act, 1949, had the effect of converting the land of the under-raiyati holding in suit into a non-agricultural tenancy, in consequence of which it was no longer open to the plaintiff-appellant to treat the suit land as agricultural land amenable to the provision of Chapter VII of the Bengal Tenancy Act, authorising the landlord to re-enter, in case of transfer without his knowledge and consent.
3. The following facts are not in dispute. Bishnupada (pro-forma defendant and pro-forma respondent No. 2) was an under-raiyat in an agricultural land under the plaintiff appellant, at an annual rental of Rs. 14/- on the strength of a registered Kabuliyat dated February 1, 1928 (Ext. 1). The under-raiyat had no transferableinterest in his holding. In spite of the same he granted a permanent lease to defendant No. 1 Rakhal (since deceased) on the basis of a registered Patta dated June 6, 1950 (Ext. 3), without the knowledge and consent of the plaintiff appellant. The land is situated in Behala within South Suburban Municipality. He subsequently effected an unauthorised transfer of the holding in favour of defendant No. 1 on July 28, 1953. Meantime on April 10, 1951 an application was filed by defendant No. 2 under the provisions of Section 72 of the Non-agricultural Tenancy Act, for conversion of the agricultural land in the holding into a non-agricultural tenancy. On July 11, 1952 in spite of the opposition by the plaintiff, the Collector passed an order for conversion, under Section 72 with effect from July 10, 1951. The rent was doubled i.e. a sum of Rs. 28/- was fixed as annual rent (Ext. A).
4. The plaintiff appellant says that the said transfer by Bishnupada in favour of Rakhal is without his knowledge and consent. Therefore under the provisions of Chapter VII of Bengal Tenancy Act, relating to under-raiyats, the plaintiff is entitled to treat the transferee defendant No. 1 as a trespasser out and out and he is entitled to re-enter in the holding. Further he means to say that the transfer Is not binding upon the plaintiff. According to the plaintiff appellant, the order of conversion is either ineffective or invalid in law, so as to entitle him to ignore it altogether and to rest content by saying that the sale order is of no legal effect whatsoever.
5. The defence, which was accepted by the Trial Court was to the effect, that the lease that preceded the sale, did not cover the entire area of the holding in suit and that the order of conversion was passed in favour of Bishnupada while he retained possession of a portion of the holding; as a result of which, the conversion which was allowed by the Collector in the face of the opposition from the plaintiff appellant, could not be challenged by him collaterally in the suit, the plaint of which again, was studiously silent about the aforesaid conversion, of which the appellant had all alone been aware up to the stage of appeal before the Commissioner.
6. The appeal met with dismissal before the learned Subordinate Judge, firstly on the ground, that under the scheme of Chapter X of the Non-agricultural Tenancy Act, the Civil Court was not competent in a collateral proceeding like the instant suit to reopen the matter by going behind the order of conversion. Therefore, the suit for ejectment started on August 14, 1953 is incompetent and consequently the appeal was misconceived.
7. Mr. A.C. Ghosh, the learned Advocate challenges the correctness of the judgments of the Courts below. He firstly contends that the whole order of conversion is ultra vires because Section 72 of the Non-agricultural Tenancy Act refers to a 'tenant' who is entitled to make an application. According to him the said expression tenant' must conform to the meaning of the non-agricultural tenant in Section 3 of the Non-agricultural Tenancy Act, read with the definition Section, viz.. Section 2(5) of the Act. As Bishnupada, the defendant respondent No. 1, is merely a korfa tenant having under-raiyati interest and as he does not fall into the class of a non-agricultural under-tenant, as in Section 3(1) (b) of the Non-agricultural Tenancy Act, the order of conversion passed on his application, is without jurisdiction and therefore ultra vires.
8. In my view, this contention of Mr. Ghosh cannot be accepted. Section 72 opens with the words 'a tenant holding any land not being non-agricultural land etc.' The tenant who is entitled to make an application under Section 72, can never be in my judgment a non-agricultural tenant, as sought to be argued by Mr. Ghosh. He must be a tenant of agricultural land. In other words he must come within the class of tenants as in Section 4 of Chapter II of the Bengal Tenancy Act. On the facts of the Instant case it Is undisputed that defendant No. 1 was an under-raiyat and therefore he falls into the hierarchy of the classes of tenants under Section 4(3) of the Bengal Tenancy Act.
9. Secondly, Mr. Ghosh contends that at the time of making the application for conversion of the under-raiyat (respondent No. 2) had already granted a Patta in respect of a portion of the holding. In other words, the under-raiyat remained in khas possession of a portion of a holding and therefore he was not a tenant holding the entire land as in Sub-section (1) of Section 72, of the Non-agricultural Tenancy Act. Mr. Ghosh submits that the tenant must retain the entire holding to enable him to take advantage of Section 72 of the Non-agricultural Tenancy Act. The expression 'holding' has not been defined in the Non-agricultural Tenancy Act. Therefore under Section 2(8) of the said Act, the word defined in the Bengal Tenancy Act should be looked into. Section 3(5) of Bengal Tenancy Act defines 'holding' which means also an undivided share thereof held by a raiyat or an under-raiyat. Though the under-raiyat has granted the Patta of a portion of the holding in the instant case he has not ceased to have interest in respect of the entire holding, on the date of the application for conversion. Accordingly, the second submission of Mr. Ghosh also fails.
10. Thirdly, Mr. Ghosh contends that a korfa raiyat cannot be classed as a tenant under the Bengal Tenancy Act. It is true that a korfa raiyat is not necessarily an under-raiyat. It depends upon the character of the Jote. In the facts of the instant case, Bishnupada is an under-raiyat. Moreover, it has been held by a Division Bench of this Court in the case of Secy. of State for India in Council v. Jadav Chatidra, 21 Cal WN 452: (AIR 1917 Cal 330) that a korfa tenant is a tenant under the Bengal Tenancy Act. It might also be remembered that under the provisions of the West Bengal Estates Acquisition Act the under-raiyats have been upgraded to the position of raiyats with a right of occupancy. This contention of Mr. Ghosh therefore also fails.
11. Mr. Ghosh next contends that the learned Subordinate Judge is wrong in holding that the Civil Court has no jurisdiction in any case to go behind the order of conversion passed by the Collector affirmed by the Commissioner in appeal. In my view, Mr. Ghosh is correct in his submission and I do not think that the learned Subordinate Judge is right in so holding. If the order of conversion passed by the Collector, whether affirmed in appeal by the Commissioner or not, is ineffective, invalid, without jurisdiction or ultra vires, the Civil Court can certainly enter into that question and can look into the nature of the order. Of course, it is true that the jurisdiction has been given under Section 72 of the Act to the Collector to entertain such application and to pass an order for conversion. The said order again is subject to an appeal to the Commissioner and no doubt it is provided that the decision of the Commissioner shall be final but merely making such a provision, does not oust the jurisdiction of the Civil Court in appropriate cases to decide as to whether the order passed under Section 72 is without jurisdiction or not.
12. Though I do not accept the broad proposition as sought to be laid down by the learned Subordinate Judge, but Mr. P.K. Sen Gupta, the learned Advocate, appearing on behalf of the defendant respondent, rightly points out that the plaintiff appellant is not entitled to raise the point of ultra vires in the instant case as nothing has been stated in the plaint and there is no prayer for setting aside the order of conversion. On the other hand. Mr. Sen Gupta submits that the plaintiff appellant rather suppresses the fact of the order of conversion from the pleading. It is framed as a suit for declaration of plaintiff's title and for recovery of possession. Mr. Sen Gupta further points out that it is not a case challenging the jurisdiction of the Collector, to pass an order on the application under Section 72. The plaintiff appellant on the other hand submitted to the said jurisdiction and opposed the application for conversion; he lost before the Collector and before the Commissioner in appeal. The plaintiff in such circumstances should not be allowed to turn round and to challenge the order as ultra vires. In my view, the order for conversion would stand in the facts of the instant case as I could not be persuaded by Mr. Ghosh to declare the order of the Collector as ultra vires or without jurisdiction. The decisions in the case of Bhagatram v. Prabirendra, 60 Cal WN 1: AIR 1956 Cal 857 and in the case of Prabirendra v. Kusum Kumari, 80 Cal WN 551 do not touch the point.
13. As no other point was urged and asMr. Ghosh has failed in all his material contentions, this appeal is dismissed but without anyorder as to costs.