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Aswini Kumar Dey and anr. Vs. Sm. Angur Bala Kundu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1910 of 1961
Judge
Reported inAIR1970Cal285
ActsCode of Civil Procedure (CPC) , 1908 - Section 9; ;West Bengal Estates Acquisition Act, 1954 - Section 6(1); ;West Bengal Amendment Act, 1961 - Section 4(1)
AppellantAswini Kumar Dey and anr.
RespondentSm. Angur Bala Kundu and ors.
Appellant AdvocateS.C. Mitter, Adv.
Respondent AdvocateMonomohan Mukherjee and ;Mohini Mohan Mukherjee, Advs.
DispositionAppeal dismissed
Cases ReferredSree Bank Ltd. v. Sarkar Dutt Roy
Excerpt:
- .....possession and injunction.2. the material facts alleged by the plaintiffs are as follows:(a) the suit land with an area of .06 decimal is comprised in dag no, 2062 of khatian no. 1114 under khatian no. 1113 in mouja santragachi, police station-jogacha, in the district of howrah.(b) one subodh chandra kundu had an occupancy raiyati jama of rs. 15 appertaining to the said khatian no. 1113, mouja santragachi under hemangini dasi. one harimati dasi took a bemiadi settlement from subodh chandra kundu by a bemiadi kabuliyat dated january 5, 1937 (exhibit 3) of 2 cottahs of bastui land at a jama of rs. 4 only and had been in possession by constructing kutcha structures thereon.(c) due to the illness since 1937, subodh could not attend the district settlement operations and in his absence.....
Judgment:

S.K. Datta, J.

1. This is an appeal by the plaintiffs against the appellate judgment and decree of affirmance dismissing their suit for khas possession and injunction.

2. The material facts alleged by the plaintiffs are as follows:

(a) The suit land with an area of .06 decimal is comprised in Dag No, 2062 of Khatian No. 1114 under Khatian No. 1113 in Mouja Santragachi, Police Station-Jogacha, in the district of Howrah.

(b) One Subodh Chandra Kundu had an occupancy raiyati jama of Rs. 15 appertaining to the said Khatian No. 1113, Mouja Santragachi under Hemangini Dasi. One Harimati Dasi took a bemiadi settlement from Subodh Chandra Kundu by a bemiadi kabuliyat dated January 5, 1937 (Exhibit 3) of 2 cottahs of Bastui land at a jama of Rs. 4 only and had been in possession by constructing kutcha structures thereon.

(c) Due to the illness since 1937, Subodh could not attend the district settlement operations and in his absence Harimati and her son Kabul Chandra Malik (Defendant No. 2) caused incorrect recordings to be made in the record-of-rights in respect of her said jama, which was recorded in Khatian No. 1114 Dag No. 2062 as korfa under Section 48-C (c) and (d) of the Bengal Tenancy Act, 1885 with non-eject-able right. The record-of-right of Khatian No. 1114 is Exhibit 2 and the area was incorrectly recorded as .06 decimals in place of 2 cottahs.

(d) After Harimati's death, the defendant No. 2 as her son and heir inherited the jama under the said kabuliyat, but though he had no transferable interest, he sold his interest in the said land to defendant No. 1. Such illegal sale without arrangement for payment of rent tanta-mounted to abandonment and relinquishment of the holding.

(e) The plaintiffs are the executors to the will of late Subodh Chandra Kundu who died prior to 1938 and they along with pro forma defendants Nos. 3 and 4 are the legatees under the will.

(f) The plaintiffs on the above allegations instituted Title Suit No. 281 of 1959 in the First Court of the Munsif at Howrah, claiming khas possession of the .06 decimals land comprised in Dag No. 2062 Khatian No. 1114. on declaration of abandonment and relinquishment of the tenancy of Harimati and on eviction of the defendants Nos. 1 and 2 therefrom, and on further declaration that title of the plaintiffs had not been affected by the West Bengal Estates Acquisition Act, 1954 Temporary injunction restraining the said defendants from building any pucca structure on the suit land and mandatory injunction directing removal of all the structures therefrom were also prayed for.

3. The suit was contested by the defendant No. 1 who denied the material allegations in the plaint. She contended that Harimati was a non-ejectable tenant, that the lands of .06 decimals would be near about 2 cottahs in local measurement, and also that the record-of-right in respect of Khatian No. 1114 was correct. It was further contended that the plaintiffs' title had vested in the State under the Estates Acquisition Act. 1953, and the suit was not maintainable by the plaintiffs. More, tile defendant No. 2 has transferable interest which was duly acquired by the defendant No. 1 by a registered conveyance dated June 15, 1959 and she was not liable to eviction,

4. At the hearing of the suit, the parties adduced evidence, oral and documentary. Apart from the exhibits referred to above, the plaintiffs filed a certified copy of Form 'B' (Exhibit 1) showing the area to be retained by them, and the suit land was included in the said return, which, it appears, was filed on August 31, 1959, while the suit was filed on August 8, 1959. The Dakhilas, one for 1360 B. S. Issued by Hemangini, Exhibit 5 (a), and the other issued by the State of West Bengal for Khatian No. 1113 for year 1366 B. S., Exhibit 5, as also the probate to the will of Subodh Chandra Kundu (Exhibit 4) were exhibited on behalf of the plaintiffs. On behalf of the defendant No. 1, the following documents were exhibited--his kabala from the defendant No. 2 dated June 15, 1959 (Exht. B), Rent Receipts issued by the State of West Bengal for Khatian No. 1114 for years 1363, 1364, 1365 and 1366 B. S. Exhibits A, A (1), A (2) and A (3) respectively.

5. The learned Munsif by his judgment dated August 29, 1960, dismissed the suit on contest with costs against the defendant No. 1 and without costs against the defendant No. 2.

6. Against the said judgment and decree the plaintiffs preferred an appeal being Title Appeal No. 390 of 1960. The appeal was heard by the learned Subordinate Judge, Third Court, Howrah, who by his judgment and decree dated March 24, 1961, dismissed the appeal with costs.

7. The plaintiffs have preferred this second appeal against the said decision.

8. At the hearing, Mr. Manomohan Mukherjee appearing for the respondent conceded that the suit land is governed by the provisions of the Bengal Tenancy Act. 1885, as contended by Mr. Syama Charan Mitter, the learned Advocate for the appellants, relying on the decision in Babu Ram Roy v. Mahendra Nath. (1904) 8 Cal WN 454, and followed in Kinuram Sadhukhan v. Hazi Md. Yusuf, (1959) 63 Cal WN 939, the head lessee being an occupancy raiyat.

9. Mr. Mitter, at the time of hearing again, did not raise any dispute as to the area of the tenancy, which he conceded, comprised of .06 decimals of land. His contention, however, is that under the provisions of the Bengal Tenancy Act, 1885, the holding of the under-raiyat is heritable but is not transferable except with the consent of the landlord. The holding of Harimati on her death devolved on her heir the defendant No. 2 who became the under-raiyat with the same incidents of the tenancy. His sale of the holding to the defendant No. 1 without the consent of his landlords, was in contravention of the provisions of Section 48-F of the Bengal Tenancy Act, 1885. Accordingly the defendant No. 1 did not acquire any title to the suit land, while by the sale by the under raiyat defendant No. 2, without making any provisions for payment of rent, he must be deemed to have voluntarily abandoned the holding, as provided in Section 87 of the Bengal Tenancy Act, 1885, and the landlords are accordingly entitled to khas possession of the suit lands. In support Mr. Mitter relied on the principles in decisions in Dayamoyi v. Ananda Mohan, ILR 42 Cal 172--(AIR 1915 Cal 242) (FB), and Iajuddin Sheikh v. Umedali Meah, (1936) 64 Cal LJ 58. In view of the said decisions. Mr. Mitter contended that his clients are entitled to possession of the suit land on eviction of the defendants therefrom.

10. This brings us to the crux of the question at issue between the parties. Mr. Mukherjee has, with great emphasis, contended that the plaintiff's interest in the suit land as a raiyat vested in the State of West Bengal with effect from April 10, 1956, when provisions of Chapter VI came in force on the basis of Department of Land and Land Revenue Notification No. 6804 L. Ref. dated April 9, 1956. The plaintiffs having ceased to have any further interest in the suit land with effect from that date, in absence of any right on their part to retain such land in terms of the provisions of Section 6(1) (b) as amended by West Bengal Act IX of 1961, it was contended that the plaintiffs had, at the material time, no right to institute the suit, which accordingly must be held as not maintainable.

11. Mr. Mitter has contended that by the West Bengal Estates Acquisition (Amendment) Act, 1961, (West Bengal Act IX of 1961) (hereinafter referred to as Act IX of 1961), the vested right which is sought to be enforced in a pending litigation, in absence of express provision or clear intendment, can never be deemed to have been taken away. Accordingly his clients' vested rights in respect of the suit land which were retained by them (vide Ext. 1), were unaffected by the Act IX of 1961.

12. It is necessary, for a proper appreciation of the position, to look into relevant provisions of the Act. Section 6(1) of the West Bengal Estates Acquisition Act, 1953 provides as follows:

X X X X X

'Section 6. Right of intermediary to retain certain lands.--

(1) Notwithstanding anything contained in Sections 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to Sub-section (2) but subject to the other provisions of that sub-section, be entitled to retain with effect from the date of vesting--

(a) ............

(b) lands comprised in or appertaining to buildings and structures whether erected by the intermediary or not.'

13. By Act IX of 1961, which came in force on 24th April, 1961, it was provided in Section 4 as follows:--

'Section 4. In Section 6 of the said Act, (i.e. West Bengal Estates Acquisition Act, 1953.)

(1) in Sub-section (1)

(2) in clause (b), for the words 'whether erected by the intermediary or not', the words 'owned by the intermediary or by any person, not being a tenant holding under him by leave or license' shall be, and shall be deemed always to have been, substituted.'

14. It has not been disputed that if the above provisions of the Act IX of 1961 applied with retrospective effect thus taking away the vested right of the plaintiffs to retain the suit land under the amended provisions of Section 6(1)(b) of the West Bengal Estates Acquisition Act, 1953, (West Bengal Act I of 1954), (hereinafter referred to as Act I of 1954), the plaintiffs' would not have any right to khas possession of the suit land, and the suit must accordingly be held as not maintainable. The contention of the defendant No. 1 has been that the plaintiffs having no right to retain the suit land wherein admittedly there are structures on the basis of the lease, the landlords' interest without right of retention of the suit land vested in the State on April 10, 1956 and as a consequence she became a raiyat under the State of West Bengal, at the same jama and has been paying rent as such raiyat to the State (vide Exhibits A to A(3)).

15. The relevant dates are as follows:

June 15, 1959 -- Kobala by Defendant No. 2 to Defendant No. 1.

August 8, 1959 -- Suit instituted.

August 31, 1959 -- 'B' form filed.

August 29, 1960 -- Decision of the Trial Court.

March 24. 1961 -- Decision of the lower appellate Court.

April 24, 1961 -- Act DC of 1961 promulgated.

July 14, 1961 -- Second Appeal filed.

16. Elaborating his arguments Mr. Mitter contended that at the time the suit was instituted, the plainiffs had the right to retain the suit land and the same was, in effect, legally retained by the plaintiffs by filing the 'B' form shortly after institution of the suit. By amendment of a statute which came in force much later, even after the judgment of the lower appellate Court, his clients' right in a pending action could not be affected. Mr. Mitter in support relied on Maxwell on the Interpretation of Statutes (11th Edition) at page 212 where it is stated in respect of pending actions as follows:

'In general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights'.

At page 213 ibid, the eminent author adds that whenever the intention is clear that the Act should have a retrospective operation, it must unquestionably be so construed, even though the consequences may appear unjust and hard.

17. Mr. Mitter referred to the decision in Kumar Punyendra Narain v. Kumar Jogendra Narain : AIR1936Cal593 where It was held that retrospectivity is never presumed and a law is regarded as retrospective only where it is so by express enactment or it is a necessary implication from the language employed by the Legislature, the presumption always being against taking of vested rights. It was further held that where the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun unless the new Act shows a clear intention to vary such rights, vide Jnanendra v. Sarada : AIR1931Cal25 , Brojendra v. Sushil : AIR1936Cal334 .

18. Mr. Mitter also strongly relied on the following observations of Sulaiman J. in the decision in United Provinces v. Atiqua Begum :

'Undoubtedly, an Act may in its operation be retrospective, and yet the extent of its retrospective character need not extend so far as to affect pending suits. Courts have undoubtedly leaned very strongly against applying a new Act to a pending action, when the language of the statute does not compel them to do so. It is a well recognized rule that statutes should, as far as possible, be so interpreted, as not to affect vested rights adversely, particularly when they are being litigated. When a statute deprives a person of his right to sue or affects the power or jurisdiction of a Court in enforcing the law as it stands, its retrospective character must be clearly expressed. Ambiguities in it should not be removed by Courts; nor gaps filled up in order to widen its applicability. It is a well established principle that such statutes must be construed strictly and not given a liberal interpretation.'

19. Mr. Mitter further relied on Manicklall Dutt v. S. Dabiruddin Ahmed, : AIR1951Cal236 , where P. B. Mukharji, J. held that whenever a statute affects pending proceedings, a strict construction is to be adopted bearing in mind the principle of presumption that a pending proceeding is not ordinarily to be affected, as a pending action relates to vested rights which will not ordinarily be allowed to be affected except by clear words or by the most necessary implication. When, again, it is affected by a statute, the statute must be confined to the limits that it has itself laid down and the pending proceeding will only be affected to the precise extent and precise limits prescribed by the statute and no more.

20. In the case of Puran Chand v. Md. Latif, : AIR1953Cal566 , Bose J. (as his Lordship then was) restated the well settled principle of construction of statutes that very clear language should be used to make the retrospective effect applicable to proceedings commenced before the passing of a statute. Further, if the legislation purports to affect rights of action, then it would only apply to actions commenced before the passing of the Act, if any intention to that effect can be fathered from the language of the Act itself.

21. Relying on the aforesaid decisions. Mr. Mitter contended that the pending proceedings in absence of express provisions were not affected by Act IX of 1961 and his clients are entitled to possession of the suit land on eviction of the defendant No. 1 therefrom.

22. Mr. Manomohan Mukherjee relied on the decision in Haji Sk. Subhan v. Madhorao, : AIR1962SC1230 , where a decree for possession obtained by the landlord in Nagpur High Court was found inexecutable on the coming in force of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1954 (M.P. Act 1 of 1954), between the closure of arguments in the appeal in High Court and the delivery of judgment but not however brought to the notice of the High Court.

23. The ratio decidendi of all the decisions on the issue is that the language of the statute must be such as to compel the Court by express provisions or necessary implication to apply the new Act, affecting vested rights in pending suits as was held in (supra). In Mt. Rafiquennessa v. Lal Bahadur, : [1964]6SCR876 , it was held that the legislature is undoubtedly competent to take away vested rights by means of retrospective legislation. Unless a clear and unambiguous intention, however, is indicated by the legislature by suitable express words in that behalf, no provision of a statute should be given retrospective operation if by such operation vested rights are likely to be affected. Further, retrospective operation of a statutory provision can be inferred even in cases where such retrospective operation appears to be clearly implicit in the provision construed in the context it occurs. In this case the appellant obtained a decree for possession against lessee and while the appeal was pending in the lower appellate Court the Assam Non-Agricultural Urban Areas Tenancy Act 1955 came into force, providing protection for tenants where permanent structures were built within 5 years of tenancy. It was held that the very scheme of Section 5 (1) (a) of the said Act prohibiting eviction of tenant, postulates the extension of its protection to constructions already made and inevitably the section comes into play at the appellate stages, provided that the appeal which is a continuation of the suit, is pending when the Act came into force.

24. Following the above principle in Sree Bank Ltd. v. Sarkar Dutt Roy & Co., : [1965]3SCR708 , it was held that Section 45O of the Banking Companies Act 1949, inserted by the Banking Companies (Amendment) Act 1953 (Act 52 of 1953), had a retrospective operation. Accordingly its provisions are applicable to suits or applications by a banking company in respect of causes of action of the suit or an application about which suits could be instituted or applications made on the date of the presentation of the winding up petitions before the commencement of the Amendment Act of 1953, even though the specified period of limitation for such action had expired before the enforcement of the Amendment Act. It was further held that: 'it is not necessary for the retrospective operation of the provisions of the Act that it must be stated that its provisions would be deemed to have always existed. That is one mode and may be an effective mode of providing that the provisions would have retrospective effect. Retrospective effect of - an enactment can also be gathered from its language and the object and intent of the legislature in enacting it.'

25. The Amendment Act 9 of 1961 in its Section 4(1) (a) provides that provisions therein 'shall be, and shall be deemed always to have been, substituted' in Section 6(1) of the West Bengal Act I of 1954. This is a clear expression without any ambiguity of the retrospective character of the amending statute by incorporation of the words 'owned by the intermediary or by any person not being a tenant, holding under him by leave or license' in substitution of the words 'whether erected by the intermediary or not' in the said section. Relying on the aforesaid decisions, it must be held that such substitution is to be deemed to exist in the Act always, thus, on the date the relevant provisions came into force, that is, on April 10, 1956. When on August 8, 1959, the suit is filed and on August 31, 1959, the land is purported to be retained, the plaintiffs had no right to retain the suit land and thus had no subsisting interest in the suit land in absence of any scope for retention thereof by them.

26. In view of the clearest expression about the retrospective application of relevant provision in the Act IX of 1961 and of the provisions of retention in Section 6(1) (b) of the West Bengal Act I of 1954 as amended by Act IX of 1961, the plaintiffs clearly were not entitled to retain the suit land and their right, title and interest therein irrevocably stood vested in the State on April 10, 1956, notwithstanding the pendency of the suit which is also to be deemed as pending though at the appellate stage. It may be kept in mind that the plaintiffs or their predecessor-in-interest Subodh had not been in khas possession of the suit land since January 5, 1937.

27. The West Bengal Act I of 1954 was promulgated for effecting far-reaching reforms in land law and for protecting the raiyats and under raiyats in possession of lands. It may as well be contended that retrospective effect of an enactment can also be gathered from its language and the object and intent of the legislature in enacting it. The statutes amending the provisions of said Act and furthering its cause as also the interest of such raiyats and under raiyats should, even in absence of express provision, on the principle enunciated in : [1964]6SCR876 (supra), be allowed to operate retrospectively although by such operation it will deprive some person or persons of a vested right. This question however does not call for further determination in this appeal, as, as already indicated, there are express provisions in the Act IX of 1961 making its application in respect of Section 6(1) (b) of Act I of 1954, retrospective without any ambiguity.

28. I am, therefore, of opinion that the plaintiffs, in absence of any right of retention of the suit land, had no subsisting interest in the suit land when the suit was instituted, the interest in the suit land having irrevocably vested on April 10, 1956. Accordingly the suit filed by the plaintiffs is not maintainable in law and the courts below committed no error in dismissing the suit.

29. As the contentions on behalf of the appellants fail, it is ordered that the appeal be and the same is hereby dismissed, parties however bearing their own costs in this Court.

30. Leave under clause 15 of the Letters Patent is asked for and is granted.


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