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Sudarshan Ghosh Vs. Janakinath Pandit - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberSecond Appeal No. 1630 of 1964
Judge
Reported inAIR1976Cal255,(1976)1CompLJ415(Cal)
ActsCivil Procdure Code , 1908 - Sections 9, 11 and 44 - Order 41, Rule 27; ;West Bengal Land Reforms Act, 1956 - Section 17, 18 and 21
AppellantSudarshan Ghosh
RespondentJanakinath Pandit
Appellant AdvocateSaktinath Mukherjee, ;Bhaskar Ghose and ;Pradipta Roy, Advs.
Respondent AdvocateGuru Prosad Ghose and ;B.B. Koley, Advs.
DispositionAppeal allowed
Cases ReferredKalipada Naskar v. Monimohan Naskar
Excerpt:
- b.c. roy, j.1. this is an appeal at the instance of the tenant defendant and is directed against the judgment and decree passed in title appeal no 508 of 1962 by the third court of the subordinate judge, at midnapore on may 14. 1964 arising out of title suit no. 139 of 1961.2. the facts leading to this appeal are in short that the plaintiff instituted the suit being title suit no. 139 of 1961 in the court of the munsif at garhbeta for a declaration that the decisions of bhagchas cases nos. 128-k and 129-k of 1958 of keshabpore bhagchas office as well as of bhagchas appeals nos. 41 and 42 of 1959 were illegal void and without jurisdiction and not binding upon the plaintiff and also for a declaration that the decision of the bhaachas case no. 14-k of 1960 of the said bhagchas office was.....
Judgment:

B.C. Roy, J.

1. This is an appeal at the instance of the tenant defendant and is directed against the judgment and decree passed in Title Appeal No 508 of 1962 by the Third Court of the Subordinate Judge, at Midnapore on May 14. 1964 arising out of Title Suit No. 139 of 1961.

2. The facts leading to this appeal are in short that the plaintiff instituted the suit being Title Suit No. 139 of 1961 in the Court of the Munsif at Garhbeta for a declaration that the decisions of Bhagchas cases Nos. 128-K and 129-K of 1958 of Keshabpore Bhagchas Office as well as of Bhagchas Appeals Nos. 41 and 42 of 1959 were illegal void and without jurisdiction and not binding upon the plaintiff and also for a declaration that the decision of the Bhaachas case No. 14-K of 1960 of the said Bhagchas Office was also illegal, void and without jurisdiction. In the said suit the plaintiff also prayed for a permanent injunction restraining the defendant from proceeding with the execution case being Execution case No. 60-N of 1961-62 pending in the Court of Sub-Divisional Officer, Midnapore and from interfering with the possession of the plaintiff in respect of the suit lands as well as for temporary injunction during the pendency of the suit stating inter alia that 3.60 acres of land comprised in C. S. plot No. 75 under Khatian No. 60 of Mouza Emua belonged to one Chandi Das Chakraborty who was then a minor. Chandi Das's father Bidhubhusan as his guardian settled 1.80 acres of land out of the said land with the father of plaintiff at a rental of half share of the produce in 1348 B. S. and one Suresh Chakraborty, it was alleged, used to realise rents of the suit land on behalf of Chandi Das. The plaintiff's father possessed the suit land on payment of rent to owner. Subsequently the suit land wassold by Chandi Das to one Bagala Bhanja and plaintiff's father paid rent to him and possessed the said land as before. After his death sometime in 1351 B. S. or 1352 B. S. the plaintiff began to possess the suit land paying rent to Bagala Bhanja as before. The defendant purchased the said land from Bagala Bhanja by a kobala dated 5th of August, 1957. In the R. S. record of rights the plaintiff was recorded as a tenant under Bagala in respect of the said suit land but during attestation Bagala on taking advantage of his absence managed to get the said land recorded in the possession of the plaintiff as a Bhagchasi to the extent of 8 annas share since 1350 B. S. and one Iswar Barik was recorded as bargadar in respect of 8 annas of the suit land. Against the said wrong entry the plaintiff preferred an objection under Section 44(2a) of the West Bengal Estates Acquisition Act and got his name recorded as a tenant in respect of the said land. The defendant after purchasing the said land falsely started some Bhagchas cases. The plaintiff filed objection in the said Bhagchas cases contending that he was a tenant and not a Bhagchasi but owing to his default in appearing on the date of hearing the cases were decided ex parte against him and awards for delivering of Bhagchas paddy as well as for termination of his cultivation were made by the Bhagchas Officer. Against the said order Bhagchas Appeals Nos. 41 and 42 of 1959 were preferred. The appellate officer, however, did not uphold the contention of the plaintiff and held that the plaintiff was a Bargadar in respect of the suit land and remanded the case for eviction for re-trial. The defendant also filed another case being B. C. Case No. 14-K of 1960 and on suppressing notices obtained an ex parte award in his favour. The said award was put into execution in B. C. Ex. Case No. 5 of 1961-62. Hence, the said suit was filed claiming the reliefs stated before.

3. The defendant filed a written statement denying that the plaintiff was a tenant in respect of the suit land and asserting that he had been possessing the said land as a Bhagchasi all along and the alleged rent receipts had been manufactured. It was also submitted that after the decision by the Bhagchas Officer that he was a Bhagchasi in respect of the suit land the plaintiff could not agitate the question that he was a tenant in respect of the suit land and not a Bargadar. The decision of the Bhagchas Officer as affirmed by the Appellate Officer was bindingupon the plaintiff and the suit was, as such, liable to be dismissed.

4. The learned Munsif at Garhbeta held that the Dakhilas were not genuine and the same were not filed during the time of hearing of the Bhagchas cases mentioned before. The plaintiff could not prove his alleged tenancy right in the suit land. It was also held that in the Bhagchas cases the plaintiff was held to be a bargadar and the same was affirmed in appeal. It was, therefore, held that the suit was barred by principles analogous to res judicata. The learned Munsif also held that the suit was maintainable and it was not barred by Section 21 of the West Bengal Land Reforms Act.

5. Against the said judgment and decree the plaintiff filed an appeal being Title Appeal No. 508 of 1962. On May 14, 1&64, the learned Subordinate Judge, Third Court, Midnapore after hearing the parties held that the presumption arising from the finally published R. S. record of rights (Exhibit 4) prepared after disposal of the objection under Section 44(2a) recording the tenancy of the plaintiff was not rebutted by any cogent evidence by the defendant. The learned Subordinate Judge also held that there was absolutely no document in evidence to prove that the plaintiff ever cultivated the suit land as a Bargadar. The learned Subordinate Judge allowed the appeal and set aside the judgment and decree of the trial Court. The title of the plaintiff as a tenant in the suit land was declared and it was also held that the awards passed in the aforesaid Bhagchas cases were void, illegal and without jurisdiction and the defendant was permanently restrained from proceeding with the execution of any of the said awards or from disturbing the possession of the plaintiff in the suit land in any other manner.

6. It is against this judgment and decree this appeal has been filed. On the 8th of April, 1975, an application had been filed for admitting the judgment passed by the Tribunal Judge in E. A. Appeal No. 130 of 1961 on the 27th of November, 1965 as additional evidence in this appeal inasmuch as the same was necessary for the proper adjudication of this appeal. The said application was directed to be considered at the time of hearing of the appeal.

7. It appears that the R. S. record of rights were prepared on the basis of the judgment passed by the Assistant Settlement Officer in a proceeding under Section 44(2a) of the West Bengal EstatesAcquisition Act being case No. 5 of 1961-62 of Mouza Emua and the judgment of the Lower Appellate Court was passed on the said B. S. record of rights. The said judgment was however reversed by the Appellate Tribunal under Estates Acquisition Act on an appeal against the said judgment and the said judgment of the Tribunal was delivered after the decision of the appeal by the Lower Appellate Court. As such the judgment which has been filed along with the application for additional evidence is required to be produced and considered in order to enable this Court to pronounce judgment. It has been held in the Bench decision in 28 Cal WN 945 = (AIR 1924 Cal 1071), (Indra Bhusan Saha v. Janardan Saha) that the record of rights published after the decision of the trial Court but before the pronouncement of the judgment by the Lower Appellate Court should be admitted in evidence under Order 41, Rule 27 of the Code of Civil Procedure and considered in determining the status of the defendants. In that view of the matter we allow the application for additional evidence without costs.

8. Mr. Saktinath Mukherjee, learned Advocate appearing on behalf of the appellant has advanced four contentions. His first contention is that where there has been no previous adjudication by the appointed officer or authority on the question whether a person is a Bargadar or not the bar of jurisdiction of the Civil Court in deciding that question in a suit as provided in Section 21 of the West Bengal Land Reforms Act will not operate. In support of his contention Mr. Mukherjee has cited the cases reported in : AIR1965Cal328 and ILR (1966) 2 Cal 48, (Bamapada Chakraborty v. Patit Paban Sardar). The second dimension of Mr. Mukherjee's contention is that when there has been a previous adjudication a suit challenging such adjudication cannot be entertained by the Civil Court in view of the expressed bar of jurisdiction of the Civil Court as provided in Section 21 of the said Act. In furtherance of this contention it has also been submitted that even a suit for a declaration of a tenancy right is not maintainable when there has been a previous adjudication by Bhagchas Officer as the decision in such a suit may directly or indirectly affect the award passed by the Bhagchas Officer in the previous adjudication. In this connection cases reported in (1962) 66 Cal WN 229 and (1965) 69 Cal WN 908 have been referred to.

9. The third dimension of Mr. Mukherjee's submission is that in decidingany of the matters specified in Section 18(1) of the West Bengal Land Reforms Act the appointed officer or authority has been conferred exclusive jurisdiction to decide whether a person is a bargadar or not by Sub-section (2) of Section 18 of the said Act and so any such determination cannot be questioned by the Civil Court The jurisdiction to decide whether a person is a bargadar or not has been exclusively conferred upon the appointed officer or authority and as such any determination of the Bhagchas Officer is beyond the pale of challenge before a Civil Court. In other words, there cannot be a frontal attack on such an adjudication in a suit before a Civil Court. Mr. Mukherjee has cited the decisions reported in (1963) 67 Cal WN 1076 and (1962) 66 Cal WN 229 in this connection. He also submitted that a suit for a declaration of tenancy right is not maintainable in a Civil Court when there has been a previous adjudication by a Bhagchas Officer declaring a person as Bargadar even though the Officer did not correctly decide the legal position. It has also been submitted that the jurisdiction to decide whether a person is a bargadar or not in deciding any of the three matters specified in Section 18 of the Act has been vested in the Bhagchas Officer and there is also a provision for appeal against the order of Bhagchas Officer under Section 19 of the Act. The determination by the Bhagchas Officer on that question is conclusive and such determination even if it appears to be erroneous it cannot be challenged before a Civil Court. Reliance has been made in this connection upon the observations made by Lord Esher in (1888) 21 QBD 313 (319) and it has been contended that the present case falls within the second category mentioned therein. Reference has also been made to the decisions of the Supreme Court in : [1951]2SCR145 and it has been submitted that the instant suit out of which this appeal arose is not maintainable inasmuch as the same was filed for a declaration that the award passed by the Bhagchas Officer was erroneous, illegal, void and not binding upon the plaintiff and for permanent injunction restraining the defendant from proceeding with the execution case.

10. The fourth dimension of Mr. Mukherjee's submission is that the awards passed by the Bhagchas Officer in the said Bhagchas proceedings operate as res Judicata on the principles analogous to res judicata and as such the instant civil suit is not maintainable. In support of hissubmission several decisions have beencited by him.

11. The last dimension of Mr. Mukherjee's submission is that the appeal which was filed under Section 44(3) of the West Bengal Estates Acquisition Act against the order of the Assistant Settlement Officer passed under Section 44(2a) was decided by the tribunal Judge in favour of the plaintiff appellant and it was held that the entry in the R. S. record of rights recording the defendant respondent as a tenant was erroneous and the respondent was held to be a bargadar under the defendant appellant The R. S. record of rights was directed to be corrected accordingly. The presumption arising from the finally published record of rights prepared on the basis of the order of the Assistant Settlement Officer under Section 44(2a) was rebutted and the entries in the R. S. record of rights being corrected the appeal shall be allowed and the judgment and decree of the Court of appeal below is liable to be set aside and the judgment and decree of the trial Court shall be confirmed.

12. Mr. Ghosh, appearing on behalf of the respondents has, on the other hand, contended that the name of the plaintiff was recorded as bargadar in the finally published R. S. record of rights and the said record was made prior to passing of the awards in the said bhagchas cases. Mr. Ghosh has contended that the Lower Appellate Court was perfectly justified in holding that the trial Court was wrong in not considering the presumption arising from the finally published R. S. record of rights which recorded the tenancy of the plaintiff and in wrongly shifting the onus on the plaintiff to prove his tenancy. Mr. Ghosh has further submitted that the Lower Appellate Court after due consideration of the R. S. record of rights as well as the dakhilas and other evidence on record has conclusively held that the plaintiff is a tenant in respect of the suit land and the defendant has failed to prove by any documentary evidence the story of bhagchas settlement set up by him. There is no infirmity in the finding of the Lower Appellate Court and as such the same cannot be set aside in this second appeal. Mr. Ghosh has also contended that in spite of the awards made by the Bhagchas Officer the Civil Courts have jurisdiction to decide whether a Person is a tenant or not inasmuch as Section 18, Sub-section (2) of the West Bengal Land Reforms Actdoes not clothe the Bhagchas Officer with the power to decide the question whether a person is a tenant or not but only the power to decide whether a person is a bargadar or not This instant suit being one for a declaration of the tenancy right of the plaintiff can be entertained by the Civil Court notwithstanding the decision of the Bhagchas Officer in the said Bhagchas cases holding the plaintiff a bargadar. Mr. Ghosh has further submitted that the Bhagchas Officer has been given the jurisdiction to determine the question if a person is a bargadar or not if only such question arises in connection with the dispute relating to any of the matters specified in Section 18, Sub-section (1) of the West Bengal Land Reforms Act and not otherwise. Mr. Ghosh, therefore, submits that this provision does not altogether shut out the jurisdiction of the Civil Court to decide a suit involving a question as to whether a person is a bargadar or not. It has been submitted that so far as the present suit is concerned if it is held that in view of the provisions of Section 21 of the said Act a declaration that the awards passed by the Bhagchas Officer in the said bhagchas cases are illegal, void and not binding cannot be made, the other relief for a declaration that the plaintiff is a bargadar or a tenant can be given and a suit for the latter declaration is maintainable. In support of this contention Mr. Ghosh has referred to the decision reported in : AIR1963Cal225 (FB).

13. In order to appreciate and decide the above contentions raised on behalf of the parties it is necessary to set out the relevant provisions of Section 18 and Section 21 of the West Bengal Land Reforms Act, 1955.

Section 18(1) 'Every dispute between a bargadar and the person whose land he cultivates in respect of any of the following matters, namely :--

(a) division or delivery of the produce.

(aa) recovery of produce under Section 16-A.

(b) termination of cultivation by the bargadar, shall be decided by such officer or authority as the State Government may appoint :

Provided that no application for decision of any dispute in respect of delivery of the produce, referred to in clause (a) shall be entertained unless such application is presented to the officer or authority within two years from the date on which the delivery of the produce falls due.'

Section 18(2) 'If in deciding any dispute referred to in Sub-section (1), any question arises as to whether a person is a bargadar or not and to whom the share of the produce is deliverable, such question shall be determined by the officer or authority mentioned in Sub-section (1).'

Section 21(1) 'No order or other proceedings whatsoever under this chapter shall be questioned in any Civil Court and no Civil Court shall entertain any suit or proceeding in respect of any matter mentioned in Sections 17 and 18.'

14. With regard to the first contention advanced on behalf of the appellant it appears that Section 18(2) of the West Bengal Land Reforms Act empowers the officer appointed by the State Government for the purposes of Chapter III of the said Act to decide a question as to whether a person is a bargadar or not which arises in deciding any dispute relating to any of the three matters specified in Sub-section (1) of Section 18 of the said Act. It also appears from Section 21 of the said Act that the order of the officer or authority passed in the Bhagchas proceeding in respect of the matters mentioned in Section 18 cannot be questioned before any Civil Court in a suit. Thus on a consideration of these two sections it is clear that the Bhagchas Officer has been conferred with the jurisdiction to decide the question whether a person is a bargadar or not only if such a question arises n connection with the decision of a dispute relating to any of the three matters mentioned in Section 18 of the said Act and not otherwise. The Bhagchas Officer, therefore, cannot decide this issue as to whether a person is a bargadar or not dependent of and not arising in connection with the decision of any dispute relating to any of the matters mentioned in Section 18. In other words, the Bhagchas Officer is not competent to pass an order to determine any person as bargadar on an application for a decision of such a question simpliciter that is for declaration of the status of a person as bargadar. This clearly shows that the Civil Court had jurisdiction to entertain a suit for decision of the question whether a person is a bargadar or not and for a declaration of the status of such person if there is no previous adjudication by the officer or authority in a bhagchas proceeding as envisaged in Section 18 of the Act. The Civil Court is thus competent to entertain a suit involving the determination on the question as to whether the plaintiff is a bargadar or not and such suit is notbarred by provisions of Section 21 of the said Act if there has been no previous determination of the said question by the officer or authority in a bhagchas proceeding in connection with the decision of any of the matters mentioned in Sec, 18 of the said Act.

15. In this case the plaintiff has been admittedly held to be a bargadar in respect of the suit land under the defendant appellant and awards for delivery of Bhag produce as well as for eviction of the plaintiff bargadar from the suit land were passed by the Bhagchas Officer in the aforesaid Bhagchas cases. An execution case has also been started for execution of the said awards. The suit out of which this appeal has arisen was instituted for a declaration that the plaintiff is a tenant and not a bargadar in respect of the suit land and for a declaration that the awards of the Bhagchas cases are illegal, void and without jurisdiction and not binding on the plaintiff and for permanent injunction restraining the defendant from proceeding with the execution case. So the two questions that now fall for consideration are (I) whether the Civil Courts have jurisdiction to entertain any such suit which directly challenges the order of the Special Tribunal in respect of any matter mentioned in Section 18 and (II) whether in view of the determination by this special tribunal that the plaintiff is a bargadar under Sub-section (2) of Section 18 of the West Bengal Land Reforms Act, 1955 the Civil Court is debarred from deciding the question of status of the plaintiff. It appears that Sub-section (1) of Section 18 clearly lays down that every dispute, between a bargadar and owner of the land in regard to any of the three matters mentioned therein shall be decided by the special tribunal i.e. by such officer or authority appointed by the State Government for the purpose. Sub-section (1) of Section 21 of the Act also expressly ousts the jurisdiction of the Civil Court to entertain any suit or proceeding in respect of any matter mentioned in Section 18(1) of the said Act. It also provides that no order or proceeding under Chapter III of the West Bengal Land Reforms Act, 1955 can be questioned in any Civil Court. Thus Section 18 unequivocally confers exclusive jurisdiction on the special tribunal i.e. the Bhagchas Officer appointed by the State Government to decide the disputes between the bargadar and owner in respect of any of the three matters -- (I) division or delivery of produce, (II) recovery of produce under Section 16-A of the Act and (III) termination of cultivation by the bargadar. Section 21 excluded the jurisdiction of the Civil Court to entertain any suit wherein the order or award made by the officer or authority in a Bhagchas Proceeding in respect of any of these matters mentioned in Section 18 of the Act has been challenged. In our considered opinion the special tribunal i.e. the officer or authority appointed by the State Government for the purpose of Chapter III of the West Bengal Land Reforms Act has been vested with exclusive and conclusive jurisdiction to decide the matters mentioned in Section 18(1) of the West Bengal Land Reforms Act and the jurisdiction of the Civil Court in respect of these matters has been completely ousted. In other words, there cannot be a frontal attack on the adjudication made by the special tribunal in respect of the aforesaid matters in a suit before a Civil Court.

16. In 69 Cal WN 908, Sudhangshu Kumar Aich v. Kamal Chandra Maity a suit was filed by the plaintiff to set aside an ex parte award made under Section 18 of the West, Bengal Land Reforms Act in Bhagchas proceedings on the grounds that the same was obtained by the opposite parties suppressing the notices and processes of the Bhagchas proceeding and for a declaration that he was a bargadar not under plaintiff who was mere benamdar but under real owner, the opposite party No. 10. It was held by P.B. Mukherjee, J. that the whole intention of the Land Reforms Act was that all disputes under Section 18 between bargadar and jotedar should be decided under the said section and except an appeal as provided in Section 19 should finally compose the differences and should not be questioned in a Civil Court. It was intended that Sections 18 and 19 would form a complete code for disposal of matters mentioned in Sections 17 and 18 of the Land Reforms Act. It is, therefore, not in keeping with the intention of the Act to find out remnants of jurisdiction in the Civil Court in respect of those very matters covered by Sections 17 and 18.

17. In (1962) 66 Cal WN 88, Jadu Nath Roy v. Lal Mohan Mallick it was held by Bhattacharya, J. that Section 18 conferred exclusive jurisdiction on the Bhagchag Officer to decide an existing dispute regarding (a) division or delivery of the produce, (b) termination of cultivation by bargadar and (c) place of storing and thrashing the produce. The existence ofa dispute, therefore, is a sine qua non of the applicability of Section 21 and consequently the bar to the jurisdiction of the Civil Court must be related to the existence of such a dispute. The suit as framed was not barred under Section 21 of the Act as it was for a declaration of tenancy right. It was held that the order or orders passed by the Bhagchas Officer or the Appellate Authority could not be questioned in these or any other suit in view of the provision of Section 21 of the Act.

18. In (1962) 66 Cal WN 229, Sarat Chandra Panda v. Sk. Amin Ali certain awards were passed by Bhagchas Officer under Section 18 holding the plaintiffs as bargadars under the present petitioners. The plaintiffs thereafter have filed four suits for declarations that these awards are illegal, invalid and without jurisdiction and there is a prayer for an injunction restraining the execution of these awards. It has been observed that in view of Section 21 of the Act, the granting of that relief would affect the awards which undeniably were orders of the Special Tribunal under the said Act. This is not permissible in view of the express language of the statute and to that extent, at least, the Civil Court's jurisdiction has been ousted.

19. It is pertinent to refer in this connection to the fundamental principles laid down by Lord Esher regarding the jurisdiction of special tribunal in the case reported in (1888) 21 QBD 313, Queen v. Commr. for Special Purpose of the Income-tax which is as follows :--

'When an inferior Court or tribunal or body which has to exercise the power of deciding facts is first established by Act of Parliament, the legislature has to consider what powers it will give the tribunal or body. It may in effect say that if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or to do something more.

When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislatures gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.'

20. This decision was relied upon by the Supreme Court in : [1951]2SCR145 , Brij Rajkrishna v. S.K. Shaw where it has been held that the Bihar Buildings (Lease, Rent and Eviction) Control Act (III of 1947) has entrusted the Controller with a jurisdiction which includes the jurisdiction of determining whether there is non-payment of rent or not, as well as the jurisdiction, on finding that there is non-payment of rent, to order eviction of a tenant. Therefore, even if the Controller wrongly decides the question of nonpayment of rent and orders eviction of the tenant this order cannot be questioned in a Civil Court. The present case falls within second category mentioned by Lord Esher in the aforesaid decision because the Special Tribunal or authority has been clothed with the exclusive jurisdiction to decide the disputes mentioned in Section 18(1) of the West Bengal Land Reforms Act. As such any order passed by the officer deciding any such dispute cannot be questioned in Civil Court even if the said decision appears to be erroneous as it falls within the jurisdiction of the special tribunal, Such a decision or order can only be challenged in appeal under Section 19 of the said Act.

21. The decision in : AIR1963Cal225 (FB), Sm. Krishnamoni Dasi v. Baser Mondal has been cited to repel this contention. In this decision it has been held by the Full Bench of this Hon'ble Court that the provisions of Section 18 read with Section 20 of the Bengal Agricultural Debtors Act, 1936 (Act VII of 1936) have conferred on the Board exclusive power to decide whether a liability is a debt or not and after finding that the liability is a debt the Board has power to determine its amount But the Board has not beengiven any exclusive jurisdiction to decide whether a liability ever existed at all. So the decision of the Board that a sale and a simultaneous agreement to reconvey constituted a mortgage liability, was liable to review by the Civil Court and was not conclusive. This decision, therefore, does not in any way, support the contention of the respondent.

22. In : AIR1973Cal419 , Anglo India Jute Mills Co. Ltd. v. Sarju Prosad Singh the defendant who was the owner filed a case under Section 17(1)(a) and (b) for termination of Bhagchas cultivation by the plaintiff before the Bhagchas Officer on the ground that he required the land for his personal cultivation. A preliminary objection was raised that the application was not maintainable as the plaintiff was not a bargadar but a tenant. The Bhagchas Officer negatived the plea and held that the plaintiff was a bargadar. On appeal the appellate officer affirmed the same and a rule against the same was discharged by this Hon'ble Court. Thereafter the case proceeded on merits. The plaintiff, however, instituted a suit for declaration that he was a tenant and for permanent injunction restraining the defendant from proceeding with the case and from interfering with his rights and possession of the lands, It has been held by D. Pal, J. that the suit was for declaration of tenancy right which the Bhagchas Officer was not empowered to decide. So the suit was maintainable. We respectively differ from this observation of the learned Judge as the learned Judge did not notice the provision of Section 21 of the West Bengal Land Reforms Act which expressly bars jurisdiction of the Civil Court to entertain a suit which seeks to challenge the order made or proceedings initiated under Section 18 of the West Bengal Land Reforms Act, 1955. Thus on a conspectus of the provisions of the Act as well as of the decisions we are of opinion that Section 18 read with Section 21 of the Act expressly oust the jurisdiction of the Civil Court to entertain any suit or proceeding which seeks to question the validity of an order passed under Section 18(1) of the Act or any proceeding initiated for decision of any dispute referred to in Section 18(1) of the said Act.

23. The next question that poses for consideration is whether in view of the previous determination by the special tribunal the jurisdiction conferred upon the officer to determine the question as to whether a person is a bargadar or not if such question arises in connection withthe decision of a dispute between bargadar and owner in respect of any of the matters mentioned in Sub-section (1) of Section 18 is exclusive and conclusive one and the said question regarding the status of the person if can be considered and decided in a suit once it is determined by the officer. In 67 Ind App 222 at p. 236 -AIR 1940 PC 105 (110). Secy. of State v. Mask & Co. Lord Thankerton has observed :--

'It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.'

24. It is therefore necessary to consider the provisions of Sections 18 and 21 of the West Bengal Land Reforms Act, 1955 in order to ascertain if the Civil Court is completely debarred from deciding the question of status of a person when the officer has already adjudicated upon the question whether a person is a bargadar or not. Section 18(1) confers exclusive jurisdiction to decide every dispute relating to any of the matters mentioned therein and Sub-section (1) of Section 21 expressly excludes the jurisdiction of the Civil Court to entertain any suit where the order passed by the officer under Section 18(1) has been questioned or where any of the matters mentioned in Section 18(1) is in question. Section 18(2) merely invests the officer with the jurisdiction to decide the question whether a person is a bargadar or not if such question arises in deciding any of the disputes referred to in Section 18(1) of the Act. The officer has not been entrusted with the jurisdiction to decide the question as to whether a person is a bargadar or not unless such question arises in deciding disputes in respect of any of the three matters mentioned in Section 18. In other words, the officer cannot simply pass an order declaring a person as bargadar on an application made by him even though there is no dispute in respect of any of the said three matters specified in Section 18. In such a case the Civil Court has jurisdiction to entertain a suit and to decide the status of the plaintiff that is whether he is a bargadar or not. Moreover, the jurisdiction of the Civil Courthas been ousted only with regard to the orders made by the officer or officers in respect of the three matters mentioned in Section 18(1) of the West Bengal Land Reforms Act, 1955 and not beyond that. Thus the jurisdiction of the Bhagchas Officer to decide on the question whether a person is a bargadar or not while determining the disputes relating to any of the matters specified in Section 18 is a limited jurisdiction for the purposes of the proceeding mentioned in that section and to that extent the orders in that proceeding cannot be questioned in Civil Court. In a Bench decision reported in : AIR1965Cal328 , J.N. Mallick v. S. N. Palit it has been observed by Laik. J. that Section 18 is mandatory but the mandate is only with respect to the three matters only and not in the matter of dispute as to whether a person is a bargadar or not. The jurisdiction of the officer in deciding the said three matters is exclusive but Sub-section (2) of Section 18 of the Act does not oust the jurisdiction of the Civil Court to entertain a suit for declaration as to whether a person is a bargadar or a tenant. In the decision reported in (1962) 66 Cal WN 88, Jadunath Roy v. Lal Mohan Mallick it has been held by Bhattacharya, J. that Section 18 confers exclusive jurisdiction only to decide disputes mentioned therein and Section 18(2) lays down that in deciding any such dispute if any question arises as to whether a person is a bargadar or not such question shall be determined by the officer or authority. Thus the existence of a dispute is a sine qua non of the applicability of Section 21 and consequently the bar of the jurisdiction of the Civil Court must be related to the existence of a dispute. But no previous order or orders passed by the Officer can be challenged in Civil Court in reference to such disputes decided therein. In (1962) 66 Cal WN 229, Sarat Chandra Panda v. Seikh Amin Ali it has been observed by P.N. Mukherjee, J. that in the matter of determination of the question of status or title under Section 18(2), the ouster of the Civil Court's jurisdiction would be only to the extent necessary for the purposes of Section 18(1) and would not extend beyond the same and such determination is incidental in the sense of not being final for purposes other than those covered by Section 18(1). This view is consistent with Section 21(1) of the aforesaid Act as it would protect the orders and proceedings under Section 18(1) as contemplated under Section 21(1) of the Act. Of course the learned Judge observed that they did not deem it necessary to decide the larger question whether Section 18(2) of the Act conferred exclusive jurisdiction on the Bhagchas Officer and jurisdiction of Civil Court was excluded completely. In ILR (1966) 2 Cal 48, Bamapati Ohakraborty v. Patit Paban Sardar it has been held by P.N. Mookerjee. J. that it would be wrong to extend the scope of Sections 16 to 21 of the Land Reforms Act and to oust the entire jurisdiction of the Civil Court on questions of status. The decision under the Land Reforms Act on the question of status must in the context be taken to be incidental to the decision of the questions, exclusively arising under the said statute and for the purposes of the proceedings mentioned therein or contemplated thereunder. In : AIR1973Cal419 , Anglo India Jute Mills Co. Ltd. v. Sarjoo Prosad Singh it has been held by D. Pal, J. that the jurisdiction conferred upon the Bhagchas Officer is of a limited character. He can decide only disputes referred to in Sections 17 and 18 of the Act and it is only in respect of those matters, that the Civil Court has been ousted from the jurisdiction to decide them. The statutory tribunal has been vested with the jurisdiction to determine the question about the existence of the relationship of bargadar, such jurisdiction being of ancillary and collateral character is not intended to oust the jurisdiction of Civil Courts when the dispute is whether a person is a tenant or not.

25. On a consideration of the provisions of Sections 18 and 21 of the West Bengal Land Reforms Act. 1955, we are of opinion that the jurisdiction conferred upon the officer or authority to determine the question whether a person is a bargadar or not if such question arises in deciding any of the disputes mentioned in Section 18(1) is not exclusive so as to oust the jurisdiction of the Civil Court to decide the question of status. The decision of the officer on this question is only for the purposes of the proceedings under Section 18 of the Act. It is incidental to the decision of the disputes referred to in Sub-section (1) of Section 18 of the Act. The bar of jurisdiction of the Civil Court as provided in Section 21(1) of the Act is only with regard to the decision passed by the officer in regard to the disputes mentioned in Section 18(1) of the Act as well as in regard to entertainment of suits in respect of any of the matters mentioned in Sections 17 and 18 of the Act, We respectfully agree with the observations of P. N. Mookherjee. J. in the decisionsin 66 Cal WN 229 and ILR (1966) 2 Cal 48 as well as with the observations of Laik, J. in : AIR1965Cal328 . We also agree with the observations made by D. Pal, J. in the Bench decision in 77 Cal WN 530 as regards the extent of jurisdiction conferred on the officer under Section 18(2) in deciding the question of status.

26. In (1963) 67 Cal WN 1076, Kalipada Naskar v. Monimohan Naskar where it has been observed by Bijoyesh Mukherjee, J. that the Special Forum (the Bhagchas Officer) has the only jurisdiction to decide whether one is a bargadar or not. As soon as it decides that he is not a bargadar, whatever else he may be, that matter falls outside his jurisdiction and inside the jurisdiction of the ordinary Court. Once the Special Tribunal decides a person as a bargadar it is not open for him to bring a suit for a declaration that he is not a bargadar. In this case in the previous adjudication by the Bhagchas Officer it was held that the defendants were not bargadars and the plaintiff thereafter filed a suit for a declaration that the defendants were not tenants. As such there was no previous determination by the Bhagchas Officer in respect of any of the disputes mentioned in Section 18 of the Act and the question regarding the exclusion of the jurisdiction of the Civil Court did not at all arise for consideration in this case. This decision, therefore, is not relevant for the purpose and the observations made by the learned Judge in this case cannot be considered as a decision on this issue but mere observations.

27. We are fortified in our views about the provisions of Sections 18 and 21 of the West Bengal Land Reforms Act, 1955 by the amendments introduced in Sub-section (2) of Section 18 as well as in Section 21 of the said Act by the West Bengal Land Reforms (Amendment) Act, 1974 (Act 33 of 1974). The legislature in order to entrust Special Tribunal with exclusive jurisdiction to decide the question whether a person is a bargadar or not has inserted in Section 18(2) the words 'or otherwise' thereby empowering the officer or authority appointed by the State Government for the purpose of Chapter III of the said Act to decide the question as soon as it arises for determination either in connection with the decision of any of the disputes referred to in Section 18(1) or otherwise. Thus after the amendment of the provision of Section 18(2) the officer has been clothed with the exclusive jurisdiction to decide the question of relationship of bargadar and owner and the jurisdiction of the Civil Court had been ousted completely. Compatible with this Sub-section (3) has been inserted after Sub-section (2) in Section 21 of the Act which clearly lays down that if any question as to whether a person is a bargadar or not arises in a proceeding before a Civil Court or Criminal Court, the Court shall refer it to the officer or the authority mentioned in Sub-section (1) of Section 18 for decision. So after introduction of the amendments in the said sections there is no room for any doubt that the jurisdiction to decide whether a person is a bargadar or not conferred upon the special tribunal is exclusive and conclusive and not merely incidental and collateral one,

28. The next point for consideration is whether the instant suit is barred by principles analogous to res judicata in view of the earlier determination by the Bhagchas Officer on the question of status of the plaintiff. In view of our holding that the jurisdiction of Bhagchas Officer on the question of status under Section 18(2) of the West Bengal Land Reforms Act, 1955 is only for the purposes of the proceeding under Section 18(1) of the said Act and the jurisdiction of the Civil Court to decide the question of status is not ousted the order of the Bhagchas Officer determining the plaintiff as a bargadar cannot operate as res judicata to this suit. It is, therefore, needless to consider the decisions cited at the bar on this point.

29. Now corning to the merits it appears that the Lower Appellate Court reversed the judgment and decree of the trial Court mainly on the ground that the entry in finally published R. S. record of rights (Ext. 4) recorded the tenancy of the plaintiff in respect of the suit land. This presumption of correctness, therefore, had arisen in favour of the plaintiff and the onus was on the defendant to disprove by evidence that the plaintiff was not a tenant but a bargadar under him. The orders of the Bhagchas Officer and appellate officer (Exts. B and C) being passed subsequent to the R, S. record of rights, it was held, could not be relied upon to show the absence of foundation of the said R. S. record of rights. There being no documentary evidence to prove barga settlement the Lower Appellate Court allowed the appeal. But it appears from the judgment passed on November 27, 1965 by the learned Judge, Appellate Tribunal in E. A. Appeal No. 130 of 1961 that the entry in the R. S. record of rights (Ext. 4) prepared on the basis of judgmentpassed in a proceeding under Section 44(2a) of the West Bengal Estates Acquisition Act, 1955 has been revised and petitioner was recorded as bargadar. Thus after the judgment of the appellate tribunal the presumption from the R. S. record of rights is in favour of the defendant appellant and against the plaintiff respondent That being the position this appeal succeeds on merits. We have also held that the suit out of which this appeal arises is barred under Sub-section (1) of Section 21 of the West Bengal Land Reforms Act, 1955 as it purports to challenge the orders passed in the Bhagchas cases by the officer under Section 18 of the said Act.

30. For the reasons aforesaid this appeal is allowed. The judgment and decree of the Lower Appellate Court is set aside and the judgment and decree of the trial Court is confirmed. In the circumstances of the case there will be no order as to costs.

N.C. Mukherji, J.

I agree.


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