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Shashi Bhusan Hazrah Vs. Sheikh Esabar (Esrar) Ali Nazir and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in29Ind.Cas.122
AppellantShashi Bhusan Hazrah
RespondentSheikh Esabar (Esrar) Ali Nazir and ors.;purna Chandra Pal;kalidas Samanta and ors.;jogendra Nath Sa
Cases ReferredJogandra Nath v. Krishna Pramada
Excerpt:
bengal tenancy act (viii of 1885), sections 109, 106, scope of - revenue court's duty as to fair rent--suits in civil court, bar of--revenue and civil courts, jurisdiction of--no forfeiture for mistake in selecting one court for another. - .....of the lands were lakheraj and the rest of the lands were held at fixed rents. the settlement officer held that certain of the lands were lakheraj, but that the other lands were not held at fixed rents, but were liable to have fair rents assessed. the cases were then taken before the special judge and the learned special judge agreed with the decision of the settlement officer. then second appeals were preferred to this court, and this court was of opinion that the decision of the settlement officer was ultra vires in holding that the lands were lakheraj and that the duty of the settlement officer was to settle rents having regard to the entriesthat appeared in the records of rights. this court upheld the decision in so far as it held that the other lands were not held at fixed.....
Judgment:

Fletcher, J.

1. These appeals are preferred by the defendant, who is the darpatnidar of a certain mouzah, called Nagarpore, of which his father obtained a darpatni settlement on the 13th April 1899. The plaintiffs in these cases are the various tenants in the mouzah. The rights that the plaintiffs allege they have in the lands are either that their lands are lakheraj, or, in two cases, I think, that they are held at fixed rents. The only objection that has been raised before us is as to whether the Civil Conrt had jurisdiction to hear and determine these suits. Proceedings were commenced on the 27th July 1901 by the father of the defendant to baye a Record of Rights prepared and that being done, the record was finally published on the 9th July 1903, and the lands of the plaintiffs in those suits were all recorded as mal lands. The defendant's father then applied under Section 105 of the Bengal Tenancy Act for assessment of fair and equitable rents of the lands. Objections were raised by the tenants, namely, that certain of the lands were lakheraj and the rest of the lands were held at fixed rents. The Settlement Officer held that certain of the lands were lakheraj, but that the other lands were not held at fixed rents, but were liable to have fair rents assessed. The cases were then taken before the Special Judge and the learned Special Judge agreed with the decision of the Settlement Officer. Then second appeals were preferred to this Court, and this Court was of opinion that the decision of the Settlement Officer was ultra vires in holding that the lands were lakheraj and that the duty of the Settlement Officer was to settle rents having regard to the entriesthat appeared in the Records of Rights. This Court upheld the decision in so far as it held that the other lands were not held at fixed rents. Then the cases went back to the Settlement Officer and he settled, in accordance with the decision of this Court, fair rents under the provisions of the Bengal Tenancy Act. The tenants then went to the Civil Court and they brought, amongst other suits, the suits that are now under appeal in which they asked for a declaration either that the lands were lakheraj or that they were held at fixed rents. It is now argued that the decisions of the Courts below are wrong, on the ground that the decision of the Settlement Officer or rather the Revenue Court with reference to what is the fair and equitable rent is binding and conclusive and that the tenants are not entitled to question that decision in any Civil Court. Of course, that is so under the provisions of Section 109 of the Bengal Tenancy Act, provided that the question in the Civil Court is concerning any matter which is or has clearly been the subject of an application made under Sections 105 to 108 of the Bengal Tenancy Act. But it is obvious from the decision of this Court in the second appeals, to which I have referred, that this Court held that the Revenue Officer was not competent to go behind the Record of Rights and enquire what was the real nature of the interest of the tenants. This Court said that the duty of the Revenue Court was limited to the inquiry as to what was the fair rent having regard to the entry that appeared on the Record-of-Rights. It is quite obvious that, in that view, Section 109 of the Bengal Tenancy Act would not be a bar to the present suits.

2. Then an argument that seems to me to have no substance at all has been advanced and that is that, having regard to the terms of Section 106 of the Bengal Tenancy Act, as the tenants have taken no proceedings as contemplated by that section, therefore, they are deprived of the right of suit in the Civil Court. But the wording of the section clearly does not bear any such construction. The words are that 'a suit may be instituted.' The word 'may' cannot be construed as meaning that the jurisdiction of the Civil Court is excluded. Before the jurisdiction of the ordinary Courts of the country can be excluded by a special Court, namely, the Revenue Court, there must be the clear words in the Statute excluding such jurisdiction. It is quite true that Dr. Ghose has referred to us an unreported decision of this Court in which the view is taken that Section 106 does exclude the jurisdiction of the ordinary Civil Court. But that decision stands alone or rather if it has got any support at all, it is supported by the decision in Jogandra Nath v. Krishna Pramada 35 C. 1013 : 12 C.W.N. 1032 : 8 G.L.J. 322 that has received judicial consideration on more than one occasion and cannot be considered as lending a strong support. It is sufficient to say that my learned brother who is sitting with me has, in a well-considered judgment already dissented from this decision which Dr. Ghose relies upon. I do not see how, on the plain words of the Section (106), it can be said that the section excludes the right of the Civil Courts. It is an extremely dangerous proposition to say that whenever a Statute gives a person a right to go, if he thinks fit, to a special tribunal, that necessarily excludes the jurisdiction of the ordinar Court of the country. I think that it does not so exclude and that the words of Section 106 are merely permissive, and in my opinion the decisions in the two cases that have been cited to us by the learned Vakil for the respondents are more in accordance with not only principle, but the plain words of Section 106, than that which Dr. Ghose has relied upon. That being so, it is manifest that there is nothing in the proceedings that have taken place before the Revenue Court or the omission of the plaintiffs in these suits to resort to the Revenue Court that would take away the rights that the plaintiffs allege theyfc have in the lands as against the danoatnidar. It seems to me to be an alarming proposition to put forward that a person, because he went to the Civil Court instead of going to the Revenue Court, is liable to be deprived of his rights to the property which he may have purchased or inherited from his ancestors. I agree with the decision of my learned brother in the case that has been handed over to us by the learned Vakil for the respondents and I think that the judgment arrived at by the learned Judge of the lower Appellate Court is correct. The appeals, therefore, fail and must be dismissed with costs.

3. Teunon, J.--I agree.


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