1. One Chand Moddin Mondal opposite party and his father Pir Box who was also the father of the other opposite parties served as Tehaildara of two Mouzas, Sibarampur and Kazipara, which belong to the petitioner Sm. Akhoy Kumari Debi. At the time of their appointment as Teksildara they executed a security bond in favour of the zemindar undertaking to perform their duties properly and to remit all the collections made by them to the zemindar. They also gave an undertaking that they would not allow rents to be barred by limitation. The clause dealing with the last mentioned matter is to the effect that they would submit a list of claims for rent from the tenants about to be barred to the principal officer before one month of the Tamadi day in order to get sanction for the purpose of instituting suits for the recovery thereof but if they did not do so and rents became barred by reason of their not submitting the list in time to the zemindar or his principal officer, then they would be liable for the amounts that would be. come barred by time. The zemindar Sm. Akhoy Kumari Debi applied under Section 8(2), Bengal Agricultural Debtors' Act for settlement of the debts of opposite party No. 1 and of Pir Buksh. As Pir Buksh had died before that application the other opposite parties, viz:, the other children of Pir Buksh, were made parties. This application was before the Kumar Debt Settlement Board which is in the western part of Dinajpur the portion which is now within the Indian Union. In the statement of her claim the zemindar stated that a certain sum of money had been collected by the tehsildars but not transmitted to her. She also claimed a certain sum of money which was due to her by reason of the covenants contained in the zamanatnama for the non-preparation of the papers by the tehsildars. She further claimed a sum of Rs. 1001 as the debt due to her by the tehsildars by reason of the aforesaid covenant in the zamanatnama relating to the rents allowed to be barred by limitation by them. The claim was laid at Rs. 2462 odd. The Debt Settlement Board held that a sum of Rs. 1460 odd was due to the applicant. It remitted the sum of Rs. 60 and settled the debt at Rs. 1400 and made it payable in twenty instalments. The Debt Settlement Board, however, omitted to notice or adjudicate upon the claim prefered by the applicant in respect of Rs. 1001 which, according to the applicant, was debt due to her by reason of the covenant in the zamanatnama relating to time-barred rents. Against the decision of the Debt Settlement Board the zemindar preferred an appeal to the appellate officer. The appellate officer by his order dated 28-12-1945, dismissed the appeal on two grounds: viz: (1) that it was out of time and (2) that the order appealed against was an order passed by consent. Against the decision of the appellate officer the zemindar filed an application for revision under Section 40A of the Act. to the District Judge of Dinajpur. The District Judge's Court was situated in the town of Dinajpur which is now in Eastern Pakisthan as the result of the separation. The learned District Judge held that the appeal that had been preferred to the appellate officer was not out of time and the order appealed against was not a consent order, he, however, dismissed the claim of the zemindar to the said sum of Rs. 1001 in a summary way. This rule relates to the claim of the zemindar to the said sum of Rs. 1001.
2. A preliminary objection has been taken by the learned advocate appearing for the opposite party. His objection is that the Calcutta High Court has no jurisdiction to hear this rule and that stands transferred to the Dacca High Court.
3. The relevant portion is Article 13, sub-para. 3 of the High Courts (Bengal) Order, 1947. That sub-paragraph runs thus:
Subject to the precedidg provisions of this article all proceedings pending on the appellate side of the High Court in Calcutta immediately before the appointed day, (the appointed day is 15-8-1947) shall, where the Court of origin is, as from that day, situated in the Province of East Bengal, stands transferred by virtue of this Order to the High Court of East Bengal.' The question before us is this: Is the Court of the District Judge, Dinajpur, to be regarded as the Court of origin within the meaning of that sub-paragraph? The learned advocate for the opposite parties contends that neither the Debt Settlement Board nor the Appellate Officer is a Court. The matter came before the Court for the first time when the application was made to the District Judge for revision under Section 40A, Bengal Agricultural Debtors Act. As that is the first Court in which the proceedings came it must be taken to be the Court of origin within the meaning of this sub paragraph and as the town of Dinajpur is in Eastern Pakisthan this rule stands transferred to the High Court of East Bengal by virtue of the provision which we have quoted above. It is unnecessary for us in the view that we are taking to decide whether the Debt Settlerment Board or the Appellate Officer is a Court within the meaning of the said sub-paragraph or whether they are judicial tribunals or merely administrative bodies set up for a particular purpose by a particular statute. The question is whether the Court of the District Judge in exercising the powers of revision under Section 40A of the Act can be said to be the Court of origin. In our view the phrase 'the Court of origin' means the Court where the proceedings originate, that is to say, where they commence. Under the provisions of the Bengal Agricultural Debtors Act the proceedings come before the District Judge at the third stage of the case. The proceedings commence in the Board, that is the first stage of the case. The second stage is the stage when an appeal is preferred to the Appellate Officer under Section 40 and it is at the third stage that it comes before the District Judge in revision under Section 40A of the Act. The Court Of the District Judge exercising powers under Section 40A, in our opinion, cannot be considered to be the Court of origin because the case does not originate there. We, accordingly, overrule the preliminary objection.
4. We do not think that the learned Judge's order by which the claim made by the zemindar to the sum of Rs. 1001 was rejected is a sound one. He simply said that that claim is not fair. In our opinion the question as to whether the zemindar is entitled to that amount must be considered in the light of the terms of the contract and in the events that have happened, An enquiry must be made as to what was the liability of the tehaildars under the terms of the zamanatnama and if under those terms the zemindar is entitled to claim this. We have already noticed the fact that a duty had been cast upon the tehsildars of giving information to the zemindar in time in respect of rents about to be barred by time. One of the important points that will have to be considered is whether the tehsildars gave that information, in time. If the tehsildars did give in time the information together with the list of tenants whose rents were about to be barred by time as provided for in the zamanatnama, there would be no liability on their part to pay the said sum of Rs. 1001 but if they had not given that information in time or the zemindar did not sanction suits for their recovery they would be liable. The matter will have to be further investigated in the light of these observations. It would not do simply to reject the claim of the zemindar on the ground on which it had been rejected by the learned District Judge.
5. We, therefore, set aside the order of the Diatrict Judge and remit the matter to the Kumar Debt Settlement Board or, if that Board has been abolished in the meantime, to the Special Officer who is doing the work of the said Board in order that the claim of the zemindar to the said sum of money may be considered in the light of the observations made above. It would be open to the parties to lead further evidence if they so deaire.
6. The rule is accordingly made absolute. Costs would abide the result, hearing fee two gold mohura.