Anil K. Sen, J.
1. This appeal is by the defendant and is directed against an appellate decree dated June 25, 1968. It arises out of a suit for recovery of khas possession and injunction winch was dismissed by the trial court but was decreed in part by the lower appellate court. The plaintiffs, who are the respondents in the present appeal, instituted the suit on the allegation that they are the owners of 2.73 acres of agricultural land appertaining to R. S. plot Nos. 423, 423/477 and 423/478 of Mouza Madhuban, P.S. Kalna, District-Burdwan of which defendant No. 1 was a bargadar. The plaintiffs started a proceeding under Section 18(1) of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the said Act) for termination of cultivation by defendant No. 1 in respect of such lands and also for recovery of owner's share of produce before the Bhagchas Board, Kalna in the year 1956, and obtained an award in their favour on Jan 10, 1957. The award was upheld on an appeal preferred by the present defendant No. 1 on April, 15, 1957, and on April 26, 1958, the plaintiffs obtained possession of the said lands in execution of the award. Since then the plaintiffs were in khas possession of the said lands but defendant No. 1 having threatened the plaintiffs with dispossession they started a proceeding under Section 11 of the Cr. P. C. through their employee Kanailal Roy and obtained an order of injunction as against defendant No. 1. Defendant No. 1, however forcibly cut away the paddy over which a theft case was started but defendant No. 1 was ultimately acquitted. Thereafter, defendant No. 1 started a proceeding against the plaintiffs under Section 144 of the Cr. P. C. which was converted into a proceeding under Section 145 thereof and in that proceeding defendant No, 1 was adjudged to be in possession. Hence, the suit was instituted for recovery of possession and permanent injunction restraining the defendants from disturbing the plaintiffs' possession thereof.
2-3. The suit was contested by defendant No. 1 appellant. He denied the plaintiffs' claim that he was merely a bargadar in respect of the suit lands and he claimed a tenancy on an annual rent of Rs. 21-8-6 in respect of 2.84 acres of land including the 2.73 decimals of suit land which originally appertained to D. S. plot No. 423 since subdivided into R. S. plots 423, 423/477, 23/478 (the suit plots) and 423/479 measuring .11 acre. According to the defendant, he having taken settlement of that entire 2.84 acres of land had all along been in peaceful possession thereof. He erected a homestead on .11 acre of land appertaining to R. S. plot 423/479 and the plaintiffs instituted a suit for eviction from that .11 acre of land in Title Suit No. 78 of 1965 which was dismissed upon a finding that defendant No. 1 is a tenant under the plaintiffs and not a licensee as claimed in that suit. Since in that suit the tenancy claimed by defendant No. 1 which also covers the suit lands was upheld, the plaintiffs can no longer disclaim the said tenancy. The defendant No. 1 denied the plaintiffs' claim that possession was ever recovered from him in execution of the Bhagchas award and further claimed that he being in continuous possession since 1350 B. S. the plaintiffs' claim must be held to be barred by limitation and he must also be held to have acquired limited title of a tenant by adverse possession for long over 12 years prior to the present suit which was instituted on Aug. 13, 1966.
The suit was dismissed by the learned Munsif who came to the conclusion that notwithstanding the entry in the records of rights in favour of the plaintiffs, the plaintiffs have failed to prove that the defendant no. 1 was a bargadar under them. The learned Munsif further found that the defendant No. 1 on the other hand had been able to prove his tenancy since 1350 B. S. and in any event, the defendant No. 1 had well established his alternative defence case of acquisition of limited title by way of tenancy by possession over 12 years. On such conclusions, the learned Munsif dismissed the plaintiffs' suit.
4. The plaintiffs preferred an appeal. The learned Additional District Judge reversed the finding of the learned Munsif on consideration of evidence. He found that the defence case of tenancy cannot be said to have been substantiated by the evidence adduced by defendant No. 1. It was further found that the plaintiffs had taken possession of the suit lands in execution of the Bhagchas award wherein the defendant No. 1 was adjudged to be a bargadar and his claim of tenancy was overruled. In such circumstances the plaintiffs are entitled to recover possession of the suit land by virtue of their own title as the owners thereof and such a right had not been barred by limitation. The learned Judge further held that in view of the award made by the Bhagchas Board, the principal issue in the suit, viz., whether the defendant No. 1 is a bargadar or tenant, must also be held to be finally decided between the parties and as such cannot be reagitated in the present case in view of the provisions of Section 21 of the said Act. On findings as such, the learned Judge allowed the appeal in part and decreed the plaintiff's claim for recovery of possession though according to him the plaintiffs are not entitled to any relief by way of permanent injunction. The suit was accordingly decreed in part when the plaintiffs' claim for recovery of possession was decreed by the court of appeal below. Feeling aggrieved, the defendant No. 1 has preferred the present appeal.
5. Mr. Chatterji appearing in support of this appeal has strongly contended that the learned Judge in the Court of appeal below is in error in holding that the issue as to whether the defendant No. J is a tenant or a bargadar is concluded by the award made by the Bhagchas Board on the provision of Section 21 of the said Act. According to Mr. Chatterji such an issue was never left by the statute to the exclusive jurisdiction of the special tribunal, namely, the Bhagchas Board and whatever decision the tribunal may have arrived at being merely incidental cannot oust the jurisdiction of the Civil Court to redetermine the said issue and decide the true status of defendant No. 1. Mr. Chatterji has relied on a number of decisions of this Court. So far as the merits of the defendant No. 1's claim is concerned, Mr. Chatterji has strongly assailed the finding of the lower appellate court and it being a judgment of reversal. Mr. Chatterji has invited this court to look into the evidence and find out whether the findings of the trial Court on the relevant issue should have been upheld or not.
6. The points thus raised by Mr. Chatterji have been strongly contested by the learned advocate for the respondents. According to him whether the defendant No. 1 is a tenant or a bargadar was a dispute specifically raised in the proceeding under Section 18(1) of the said Act wherein the present plaintiffs claimed termination of barga cultivation by defendant No. 1 and that dispute having been determined against defendant No. 1 it is no longer open to the civil court to go behind the award and determine the said issue in favour of the defendant No. 1 the result whereof would be to nullify the award itself. So tar as the merits are concerned, the learned advocate for the plaintiff/respondents has strongly contended that the learned Munsif never decided the merits upon a proper appraisal of the evidence on record which evidence if properly considered, as considered by the court of appeal below, would nullify the defence claim of tenancy. According to the learned advocate for the plaintiff/respondents, the findings on the merits by the court of appeal below are findings of tact based on proper appreciation of evidence on record and such findings cannot be challenged in a second appeal though the judgment is one of reversal.
7. So far as the first point raised by Mr. Chatterji is concerned, no doubt, the same involves a question of law over which there is no uniformity of decision in this court. It is not in dispute that the plaintiffs instituted a proceeding under Section 18(1) of the said Act before the special tribunal, namely, the Bhagchas Board in 1956 on a prayer amongst others for termination of bhag cultivation by the present defendant No. 1. It is also not in dispute that in this proceeding the defendant No. 1, unsuccessfully pleaded a defence of tenancy as now pleaded in the present suit. The plaintiffs obtained an award in their favour on Jan. 10, 1957 (Ext. 1) and the said award was upheld by the appellate authority on April 15, 1957 (Ext. 1a). According to the learned Judge in the court of appeal below this award concludes the issue between the parties as to whether defendant No. 1 is a tenant or a bargadar because the decision on the issue being the basis of the award when the award itself cannot be challenged in view of the provision of Section 21 of the said Act, the decision also cannot be challenged. Strong reliance is placed by Mr. Chatterji on the observations of the Division Bench in the case of Sarat Chandra Panda v. Sk. Amin Ali (19G2) 66 Cal WN 229 in contending that the view taken by the learned Judge in the court of appeal below is wholly contrary to the views expressed in the above decision. Though the observations made in the said decision are obiter in nature those have been adopted and laid down as the principles flowing from the effect of Section 21 of the Act in the case of Sudarshan v. Janaki, : AIR1976Cal255 . The latter decision in a way supports the contention of Mr. Chatterji when it has been held that the question whether a person is a bargadar or not does not lie within the exclusive jurisdiction of the special tribunal to decide even where such a dispute arises in deciding a dispute under Section 18(1) of the Act. The decision on that issue is merely an incidental decision and notwithstanding the said decision the civil court would still have the jurisdiction to go into that question afresh as between the parries. This, according to the learned Judges, was the position in law until the Amending Act 33 of 1974 when on the amendment of Section 18 and Section 21 the adjudication of a dispute as to whether a person is a bargadar or not had been left exclusively with the special tribunal. Some of the authorities cited by the learned Additional District Judge, though those are the decisions of single Judges, have no doubt taken a contrary view.
8. Here, in the present case, we are concerned with the law as it stood prior to the 1974 amendment as aforesaid. Under that law, three disputes, namely, the dispute in respect of (i) division or delivery of produce, (ii) recovery of produce under Section 16(a) and (iii) termination of cultivation by the bargadar, was left to the exclusive jurisdiction of the special tribunal to determine and on the provisions of the latter part of Section 21(1) civil court's jurisdiction in respect of such disputes was ousted. A dispute as to whether a person is a bargadar or not is certainly not a dispute coming within any of the three disputes specified as above by Section 18(1) of the said Act. Under the provision of Section 18(2), however, if in deciding any dispute referred to in Sub-section (1) any question arises as to whether a person is a bargadar or not such question shall be determined by the special tribunal. Thus, the special tribunal is conferred the jurisdiction to decide such a dispute though under the provision of Section 18 read along with the latter part of Section 21 that dispute may not have been left to the exclusive jurisdiction of the special tribunal to decide. But nonetheless the first part of Section 21(1) provides that no order or other proceeding whatsoever under this Chapter shall be questioned in any civil court. Much can still be said in favour of the view taken by the learned Additional District Judge that where the decision of the special tribunal on any dispute as to whether a person is a bargadar or not constitutes the very foundation of an adjudication left to the exclusive jurisdiction of that tribunal under Sub-section (1) of Section 18, that decision constitutes such an integral part of the order itself made in the proceeding under Section 18(1) that it can no longer be treated to be more incidental and the bar under the first part of Section 21(1) would equally be invoked in respect of that part of the decision of the special tribunal. Otherwise taking illustration from the present case when the special tribunal has directed termination of cultivation by the defendant No. 1 on a finding that he is a bargadar and when he has been evicted in execution of such an award, to allow the civil court to adjudicate the said issue once more would only mean that the defendant can be restored to possession on a declaration that he is a tenant and that in no uncertain terms means nullifying the award of the special tribunal. The Division Bench in the case of Sarat Chandra Panda v. Sk. Amin Ali was not called upon to decide this point conclusively but even then therein it was observed that in the matter of determination of the question as to whether a person is a bargadar or not under Section 18(2) the ouster of the civil court's jurisdiction would be to the extent necessary for the purpose of Section 18(1). In a given case, therefore, if the decision on such an issue forms an integral part of the decision of any of the disputes referred to in Section 18(1), necessarily that is taken out of the civil court's jurisdiction even on the basis of the observation so made. This aspect appears not to have arisen for consideration nor was it considered in the case of Sudarshan v. Janaki. However, sitting singly I am bound by the Bench decision in the ease of Sudarshan v. Janaki and shall proceed on the basis that decision of the Bhagchas Board to the effect that defendant No. 1 was a bargadar was merely incidental and would not bar the jurisdiction of the civil court to decide that question once more in the present suit. The contrary view taken by the learned Additional District Judge on this point, therefore, should not be sustained.
9. In the present case, the question whether the defendant No. 1 is a tenant or a bargadar had been gone into by the two courts on merits. Unfortunately, however, the learned Munsif did not come to any finding which can be sustained in law because such finding was never arrived at on appraisal of evidence. In a very unsatisfactory judgment delivered by him, he merely recorded the respective contentions and following the sama the learned Munsif recorded a dogmatic conclusion to the effect that the presumption attached to the record of rights has been rebutted by cogent evidence and the plaintiffs have failed to prove the defendant to be a bargadar. The learned Munsif further observed that the defendant No. 1 has been able to prove his tenancy since 1350 B. S. and moreover the defence case of acquisition of limited tenancy has been proved as an alternative case by the materials on record. Had the learned Munsif appraised the evidence on record he could not have came to any such conclusion as has been rightly pointed out by the learned Additional District Judge. The defendant No. 1 has been recorded as a bargadar in the revisional record of rights and has further suffered an order of eviction as a bargadar in a proceeding under Section 18(1) of the said Act. Such evidence well supports the plaintiffs' case until the counter claim by defendant No. 1 that he is a tenant is proved. According to defendant No. 1 he took settlement of the entire 2.84 acres of land which before sub-division appertained to plot No. 423 on an annual Jama of Rs. 21-8-6 on an alleged payment of selami of Rs. 50/-. Payment of such selami could not be proved by any acceptable evidence. I feel no hesitation in agreeing with the learned Additional District Judge that the plaintiffs themselves being liable to pay the annual rent of Rs. 21-8-6 to the superior landlord, it was wholly improbable and unnatural that they in their turn would grant a sub-lease thereof on the same rent running the risk all the time of the rent payable by defendant No. 1 being in default. Moreover, in proof of a tenancy alleged to be subsisting since 1350 B. S. the defendant No. 1 could produce only two rent receipts, Exts. A2 and A3 (wrongly referred to as Exts. D and D1 in the judgment of court of appeal below). These are kutcha receipts though it is well established that the plaintiffs as landlords had been issuing rent receipts in printed form in favour of their admitted tenants vide Exts. A and Al, These rent receipts have not been believed by the learned judge in the court of appeal below. The learned Munsif never considered this aspect at all. As a matter of fact, the learned Munsif did not consider any evidence whatsoever on its merits. Exts. A2 and A3 were alleged to have been granted under the signature of Kanailal Roy, employee of the plaintiffs. Kanai has been examined on behalf of the plaintiffs who denied his alleged signature in these Exts. A2 and A3. None of the witnesses for the defendant No. 1 did prove the writing or the signature to be that of Kanai. Mr. Chatterji strongly contended before me that the learned Judge in the court of appeal below should have himself compared the signature on these Exts. A2 and A3 with the admitted signature of Kanai Roy to decide whether these two documents are genuine or not. Strong reliance was placed by Mr. Chatterji on the decision of the Supreme Court in the case of Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326. I am, however, unable to accept this contention of Mr. Chatterji because such comparison by the learned Judge would have been of no avail since the same would (be) nothing but opinion evidence and the dispute as to the genuineness of the document could not have been decided solely on the opinion evidence. That apart, other cogent reasons have been given by the learned Additional District Judge to disbelieve these alleged rent receipts. Such being the position, it had been rightly pointed out by the learned Additional District Judge that there is hardly any evidence on record to substantiate the defence claim of tenancy apart from the oral evidence which on due consideration has been disbelieved by the learned judge in the court of appeal below.
10. The real defence of the defendant No. 1 was based on the decision in his favour in Title Suit No. 78 of 1966 where the plaintiffs' suit for eviction of defendant No. 1 from .11 decimals of land appertaining to plot No. 423/479 was dismissed on a finding that the defendant No. 1 was a tenant in respect of the plot. That plot does not constitute a part of the suit land in the present case but according to the defendant No. 1 since the tenancy is but one his claim of tenancy in respect of 2.84 decimals of land appertaining to the original plot No. 423 must be held to have been upheld in the earlier suit. The decision rendered in that suit, however, does not support the defendant on this point. It had been rightly pointed out by the learned Additional District Judge that the finding in that suit was to the effect that the alleged right of tenancy of defendant No. 1 in respect of the entire plot No. 423 had not been proved and that the defendant No. 1 cannot get away from the position that he is a bargadar in respect of 'Kha' schedule land which 'Kha' schedule undisputedly forms part of the original plot No. 423 and appertains to plots in suit in the present case. Such being the position, I cannot but overrule the defence claim of tenancy in respect of the land and uphold the finding of the court of appeal below that the defendant No. 1 was a bargadar. On the question of possession, the learned Judge in the court of appeal below has held that the plaintiffs took delivery of possession on April 26, 1958, in execution of the award of the Bhagchas Board which has been well established by Ext. 14. According to the learned Judge even if it be assumed that in taking such possession the plaintiffs had not taken actual khas possession from defendant No. 1 and that they had merely taken symbolical possession thereof, still the present suit having been filed well within the period of limitation from that date, namely, April 26, 1958, they are entitled to get a decree for recovery of possession. The view taken by the learned Additional District Judge is well supported by the Full Bench decision in the case of Juggobundhu v. Ramchunder, (1880) ILR 5 Cal 584 and a number of other decisions of this court including the decision in the case of Jogendra Krishna v. Joy Shib, AIR 1926 Cal 1172. But that apart, in my view it was not necessary for the learned Additional District Judge to assume that the possession that was taken was merely symbolical possession. On the other hand, the evidence on record shows that delivery of possession was made in terms of Order 21, Rule 35 of the Civil P. C. and the peon's return also goes to show that what was delivered was the actual possession of the suit land. The presumption of correctness in respect of such a return has not been rebutted and there is no reason to think that in taking possession the plaintiffs had not taken actual khas possession. On the other hand, evidence well establishes the tact that the plaintiffs not only got actual possession of the suit land but continued to remain in possession thereof for some time which fact is established by the order made in their favour in the proceeding under Section 144 of the Cr. P. C. It is only later that they were dispossessed. The suit being well within the period of limitation from the date of dispossession had been rightly decreed by the court of appeal below.
11. In the result, this appeal fails and is dismissed with costs.