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Sm. Jharna Ghosal Vs. Satyendra Prosad Dhar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. Nos. 1192 of 1975 and 4403 of 1974
Judge
Reported inAIR1978Cal274,(1978)1CompLJ193(Cal),82CWN335
ActsWest Bengal Acquisition Act, 1954 - Section 57B; ;West Bengal Acquisition (Amendment) Act, 1973;Code of Civil Procedure (CPC) , 1908 - Section 96 - Order 43, Rule 1; ;Code of Civil Procedure (CPC) (Amendment) Act, 1975 - Section 115
AppellantSm. Jharna Ghosal
RespondentSatyendra Prosad Dhar
Appellant AdvocateS.K. Mukherjee, ;N.K. Manna, ;M.N. Ghosh and ;Dwarakanath Sen, Advs.
Respondent AdvocateMihir Kumar, Adv.
Cases ReferredAyubali Sardar v. Derajuddin Mallick
Excerpt:
- .....instituted by the opposite parties for declaration of their title to the disputed property. in title suit no. 143 of 1971, out of which c. e. 1192 of 1975 arises, there is a prayer for a further declaration that the entries in the record-of-rights are erroneous. in the other suit, there is no such prayer relating to entries in the record-of-rights. indeed, the learned munsif has observed that the entries in the record-of-rights have been indirectly challenged by the plaintiffs of that suit. the question therefore is, whether a suit would abate under section 57b of the act where, in the plaint, the plaintiff prays for a declaration that the entries in the record of-rights are erroneous, or though there is no such prayer, the correctness of the entries is challenged in the body of the.....
Judgment:

M.M. Dutt, J.

1. These two Rules have been referred to the Division Bench by A. Bhattacharya J.

2. The principal point that is involved in these Rules is whether an order recording abatement of a suit under Section 57-B incorporated in the West Bengal Estates Acquisition Act, 1953, hereinafter referred to as the Act, by the West Bengal Estates Acquisition (Second Amendment) Act, 1973, is an appealable order. There are two conflicting decisions on the point, In Amritamay Ghosh v. State of West Bengal, (1976) 80 Cal WN 205, R, Bhattacharya J. has expressed the view that an appeal lies against such an order and a revisional application under Section 115 of the Civil P. C. is not maintainable. In support of his view Bhattacharya J. has placed reliance on two Bench decisions of this Court, one in Naimuddin Biswas v. Moniruddin Laskar, 32 Cal WN 299: (AIR 1928 Cal 184) and the other in Sabitribai v. Jugal Kishore, AIR 1938 Cal 639, and a decision of the Madras High Court in Subbayya v. Saminadayyar, (1895) ILR 18 Mad 496. On the other hand, in Sideswar Biswas v. State of West Bengal, (1976) 3 Cal HC (N) 394, Chitta-tosh Mookerjee J. has taken a contrary view. It has been held by Mookerjee J. that an order recording abatement of a suit under Section 57-B is not an appeable order, but it can be challenged by an application under Section 115 of the Code. Mookerjee J. has pointed out that the case of Naimuddin Biswas v. Moniruddin Laskar (supra) has been distinguished and explained by Chakravartti C. J. in a later Bench decision of this Court in Subodh Gopol v. Nilabja Barani Debi, (1955) 59 Cal WN 1056. Further, the learned Judge has pointed out that the decision of the Madras High Court in Subbayya v, Saminadayyar (supra) was considered by the Full Bench of the Lahore High Court in Niranjan Nath v. Afzal Hus-sain, AIR 1916 Lah 245 (FB) where Shadi Lal J. who delivered the judg-ment of the Full Bench observed: 'When a Court passes a purely formal order recognising the abatement which is a fait accompli, such an order, though virtually disposing of the suit, does not adjudicate upon any rights and cannot be treated as a decree. If on the other hand, the order of abatement is the result of an adjudication upon the rights of the parties with respect to a matter in controversy and is not passed upon an application for the revival of the suit made under Order 22, Rule 9, it amounts to a decree and is appealable as such.' In that view of the matter Mookherjee J, held that an appeal did not lie from an order recording abatement under Section 57-B of the Act.

3. Under Section 96 of the Civil P. C. an appeal lies from every decree except a decree passed by the Court with the consent of parties. Principally, therefore, an appeal lies from a decree and no appeal lies from an order. Certain orders have, however, been made appealable under Section 104 and as enumerated in the list under Order 43, Rule 1 of the Code. So, if an order is not a decree, no appeal lies from it unless it is one of such orders as are mentioned in Order 43, Rule 1. A decree, as defined in Sub-section (2) of Section 2 of the Code, means the formal expression of an adjudication which, so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. If an order answers the definition of a decree an appeal will lie from it under Section 96; but if an order is neither a decree nor finds place in the list of appealable orders under Rule 1 of Order 43, no appeal will lie from it.

4. An order recording an abatement of a suit is not an appealable order under Rule 1 of Order 43 of the Code. The question, therefore, naturally arises whether such an order is a decree within the meaning of Section 2(2) of the Code. The provisions for abatement are contained in Order 22 of the Code. Under Rule 3 of Order 22 where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Under Sub-rule (2) of Rule 3, if within the time limited by law no application is made under Sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned. Sub-rule (1) of Rule 4 provides for the substitution of the legal representative of the deceased defendant in case of death of one of several defendants or of a sole defendant, and the consequent abatement of the suit as against the deceased defendant in case no application for substitution is made within the time limited by law. The order for abatement is purely a formal order in the sense that the Court is not required to decide or even apply its mind to the rights of the parties in passing such an order. When one of two or more plaintiffs dies, the Court is only to see whether or not the right to sue survives to the surviving plaintiff or plaintiffs. In case it finds that such right does not survive and if no application for bringing on the record the heirs of the deceased plaintiff is made within the period of limitation prescribed therefor, the Court will have to record an order of abatement of the suit as against the deceased plaintiff. When the sole plaintiff dies and if the Court finds that the right to sue survives and if the legal representative of the deceased plaintiff does not make any application for bringing him on the record of the suit, an order for the abatement of the suit will be recorded by the Court. The position is the same in the case of death of one of two or more defendants or of the sole defendant. In recording abatement of the suit as against the deceased plaintiff or defendant, there is no necessity for the Court to adjudicate the rights of the parties. It is only when the legal representatives of the deceased party are brought on the record, the Court will proceed with the determination of the rights of the parties before it. So long as there is no final adjudication of the rights of the parties, no decree comes into existence,

5. In Naimuddin Biswas v. Moniri uddin Laskar (AIR 1928 Cal 184) (supra) one of the appellants who was the defendant No. 4 in the suit, died before the hearing of the appeal and his heirs were not brought on the record and consequently the appeal abatied as against the deceased appellant. It was contended on behalf of the surviving appellants that the heirs of the deceased appellant might be brought on the record under the provision of Order 41, Rule 4 of the Code. In repelling that contention Cuming J, one of the learned Judges of the Bench, referred to the case of Bhikaji v. Purushotam, (1893) ILR 10 Bom 220, where it was held that an order of abatement was virtually a decree as it disposed of the plaintiff's claim as completely as if tha suit had been dismissed. It has been already stated that the decision in Naimuddin Biswas's case has been relied on by Bhattacharya J. This decision has, however, been considered by a later Division Bench consisting of Chakravartti C. J. and Mallick J. in Subodh Gopal Bose v. Nilabja Barani Debi (1955-59 Cal WN 1056) (supra). Chakravartti C. J. who delivered the judgment of the Bench observed as follows:

'It was in the course of laying down that proposition that the learned Judges observed that an order of abatement was 'virtually' a decree. They did not say that such an order was technically a decree, but what they meant was that the abatement had terminated the rights of the deceased appellant in the same manner as a decree against him would and therefore the Court could not properly nullify the effect of the abatement by intervening in favour of the heirs of the deceased appellant under Order 41, Rule 4. It is to be noticed that the learned Judge used carefully guarded language, because all that they said was that an order of abatement was virtually a decree and not that it was a decree.'

6. Chakravartti C. J. also considered a case where, of the several appellants, one died and his heirs or legal representatives were not brought on the record within the period prescribed by law. If the right to continue the appeal did not survive to the surviving appellants alone, the order that would be generally made was that the whole appeal had abated. In such a case, it was observed by Chakravartti C. J., that the Court did not merely record the order that the appeal had abated, but passed an order dismissing it on the ground that the surviving appellants were not competent to prosecute the appeal by themselves, and so if an order of abatement merely recognised the fact that an abatement had taken place it could not operate as a decree, but if upon abatement in respect of one of several plaintiffs or one of several defendants, it was contended that the whole of the suit had abated and the Court determined the question in favour of the contention, there was quite clearly an adjudication on the rights of the parties and such an order would be a decree. The case of Sabitribai v. Jugal Kishore, (AIR 1938 Cal 639) (supra) also relied on by Bhattacharya J. comes within the category of the case as discussed by Chakravartti C. J. where the Court has to determine whether the right of the surviving plaintiffs or appellants to prosecute the suit or appeal survives or not and if the Court determines that such right does not survive that would be adjudicating the rights of the parties and such a decision would be a decree. The facts of the case of Sabitribai v. Jugal Kishore are different from those of the instant case before us. Indeed all the above cases relate to abatement of suits resulting from the death of a party. It may be that when the Court decides that on the abatement of the suit as against a deceased party, the whole suit has abated, there is an adjudication on the rights of the parties and the order of abatement of the suit is a decree. It is, however, not necessary for us to decide whether in such a case, the order will be a decree or not, for we are concerned with abatement of a suit under Section 57B of the Act where the Court has to record a formal order of abatement if the suit comes within the provision of that section, Be that as it may, Chakravartti C. J. has clearly explained the observation of Cuming J. in Naimuddin Biswas's case to the effect that it was not laid down in that case that an order of abatement would be a decree, although it was virtually a decree. Most respectfully we agree with the learned Chief Justice that such an order is not a decree.

7. The Madras decision in Subbayya v. Saminadayyar, (1895) ILR 18 Mad 496, referred to by Bhattacharya J. has been considered by a Full Bench of the Lahore High Court in Niranjan Nath v. Afzal Hussain (AIR 1916 Lah 245) (supra) and we have already quoted the observation of Shadi Lal J. who delivered the opinion of the Full Bench. We, therefore, hold that when a Court records an order of abatement of the suit under Section 57B of the Act, it does not thereby adjudicate the rights of the parties and accordingly, such an order is not a decree and no appeal lies from it. We agree with the view expressed by Chittatosh Mookerjee J. in Sideswar Biswas v. State of West Bengal ((1976) 3 Cal HC (N) 394) (supra). In these circumstances, we hold that the impugned orders recording abatement of the suits under Section 57B of the Act are not decrees nor are they appealable orders and, as such, no appeal lies from such orders. These orders are, however, revisable under Section 115 of the Civil P. C. and accordingly, the instant Rules are maintainable.

8. We may now consider whether the respective trial courts were justified in directing the abatement of the suits under Section 57B of the Act, Both the suits, out of which these Rules arise, have been instituted by the opposite parties for declaration of their title to the disputed property. In Title Suit No. 143 of 1971, out of which C. E. 1192 of 1975 arises, there is a prayer for a further declaration that the entries in the record-of-rights are erroneous. In the other suit, there is no such prayer relating to entries in the record-of-rights. Indeed, the learned Munsif has observed that the entries in the record-of-rights have been indirectly challenged by the plaintiffs of that suit. The question therefore is, whether a suit would abate under Section 57B of the Act where, in the plaint, the plaintiff prays for a declaration that the entries in the record of-rights are erroneous, or though there is no such prayer, the correctness of the entries is challenged in the body of the plaint. In Ram Barai Shaw v. Srnt. Bibhabati Basak, (1975) I Cal LJ 382, I had to consider to some extent, the scope of Section 57B of the Act and I held as follows:--

(1) An entry in the record-of-rights is not a proof of title nor the record-of-rights is a document of title. It only raises a presumption as to the correctness of the entries in such records. Such presumption is not an ir-rebuttable presumption.

(2) The Revenue Officer, in preparing the draft record-of-rights, does not decide questions of title when there is a dispute regarding ownership of land, hut he decides such a dispute on the basis of possession only and that too in a summary manner. A person may have good title to a piece of land, but if he is out of possession at the time the draft record-of-rights is prepared, the Revenue Officer will not be able to recognise the title of that person for the purpose of making an entry in that regard in the record-of-rights. Moreover, very often the disputes as to the ownership of land, involves complicated questions of title which the Revenue Officer is unabla to decide. In these circumstances, it is difficult to infer that although questions of title cannot be decided by the Revenue Officer and although an entry does not create any title, the legislature has excluded the jurisdiction of Civil Courts to decide questions of title.

9. Section 57B does not, in our opinion, either expressly or by necessary implication exclude the jurisdiction of Civil Courts to decide questions of title. We may refer to a Bench decision of this Court in Ayubali Sardar v. Derajuddin Mallick, (1975) 2 Cal LJ 305. In that case, it has been observed by Anil Kumar Sen J. who delivered the judgment of the Bench that notwithstanding an entry adverse to the plaintiff's claim, a suit for declaration of title based on an independent cause of action is maintainable in law and nothing prevents such a plaintiff from getting the relief claimed by him even without altering or correcting the erroneous entry in the relevant record-of-rights. Further, it has been observed by his Lordship that a question or dispute which does not at all fall for determination for the purpose of preparation or revision of the record-of-rights would not coma within the purview of Section 57B and, consequently, the entertaining of a civil suit for determination of such a dispute or question is not barred nor is it so intended. Most respectfully we agree with the said observation of Sen J. In our opinion, where in a suit the principal issue relates to the question of title, a prayer for a declaration that the entries in the record-of-rights are wrong or statements in the plaint, assailing the correctness of such entries, would not bring the suit within the purview of Section 57B of the Act.

10. In most of the suits involving determination of questions of title to lands, the entries in the record--of-rights are challenged by one party and relied on by the other. A plaintiff may come with a case for establishment of his title and in that connection it may be necessary for him to prove that the entries in the record-of-rights are erroneous. If in such suits it is held that Section 57B would apply, leading to the recording of orders of abatement of the suits, we are afraid, there would be no forum or process of law to establish title to land or property, Such cannot be the intention of the legislature. In these circumstances, we are of the view that the trial courts in the respective suits have illegally refused to exercise jurisdiction in holding erroneously that the suits have abated under Section 57B of the Act.

11. In the result, the impugned orders are set aside and the trial courts are directed to dispose of the respective suits in accordance with law. Both these Rules are made absolute. There will, however, be no order for costs in either of them. Let the records be sent down as early as possible.

D.C. Chakravorti, J.

12. I agree.


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