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Kanak Kanti Roy Vs. Kripa Nath GaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1931Cal321
AppellantKanak Kanti Roy
RespondentKripa Nath GaIn and ors.
Cases ReferredManiruddin Mondal v. Sm. Charusila Debi
Excerpt:
- .....of notice and other questions that might arise. the order of the remand was made in 1927. the subordinate judge, on remand, made a decree in plaintiff's favour. the defendant then appealed to this court, and the said appeal being heard by our learned brother s. k. ghose, j., that decree has been reversed. from his decision the present appeal has been preferred under the letters patent.2. one of the questions mooted before the subordinate judge who heard the appeal on remand was whether in view of section 20, sub-section (1-a) introduced by bengal act 1 of 1925, the defendant had not acquired the status of an occupancy ryot so as to defeat the plaintiff's claim. this question was answered by the subordinate judge in the negative, but our learned brother s.k. ghose, j. has taken a.....
Judgment:

1. This appeal arises out of a suit for enhancement of rent based on an agreement served under Section 46, Ben. Ten. Act and for ejectment on the ground of refusal to pay the enhanced rent. The suit was instituted in 1922. On a previous occasion, when the suit came up on second appeal before this Court, it was remitted to the lower appellate Court to determine the question of service of notice and other questions that might arise. The order of the remand was made in 1927. The Subordinate Judge, on remand, made a decree in plaintiff's favour. The defendant then appealed to this Court, and the said appeal being heard by our learned brother S. K. Ghose, J., that decree has been reversed. From his decision the present appeal has been preferred under the Letters Patent.

2. One of the questions mooted before the Subordinate Judge who heard the appeal on remand was whether in view of Section 20, Sub-section (1-A) introduced by Bengal Act 1 of 1925, the defendant had not acquired the status of an occupancy ryot so as to defeat the plaintiff's claim. This question was answered by the Subordinate Judge in the negative, but our learned brother S.K. Ghose, J. has taken a contrary view. This is the only question for our consideration in this appeal.

3. It was argued on behalf of the appellant that as the question was not raised before this Court on the previous occasion, when this Court remanded the case though Bengal Act 1 of 1925 had then come into force, the respondent was precluded from raising it afterwards. We are not prepared to accede to this contention : the order of remand left it open to the Subordinate Judge to deal with all questions that might arise in the suit, and if in support of his defence that he was an occupancy ryot the defendant put forward an additional and new reason based on Sub-section (1 A), Section 20, which was then the law, the Subordinate Judge was right in considering it.

4. The tenancy in this case originated in 1896 or 1897. The area in which the land is situate was not declared to be a village until February 1912. The suit was instituted in 1922. The position therefore is that the defendant held the land continuously for nearly 16 years before 1.912 and for about ten years after 1912. At the date, when the suit was instituted, the sub-section had not been introduced, and the law that would have applied to the case was what was enunciated in the case of Janab Ali Molla v. Port Canning and Land Improvement Co. Ltd. : AIR1925Cal336 . Now Sub-section (1-A), Section 20, was introduced by Bengal Act 1 of 1925 in order to counteract the effect of the decision in the aforesaid case. And the question is to what extent did it do so.

5. The sub-section declared that in construing Section 20:

a person shall be deemed .... to have continually held land in a village, notwithstanding that, such village was defined, surveyed and recorded as, or declared to constitute a village at a date subsequent to the commencement of the said period of 12 years.

6. The general rule, as to the retrospective effect of a statute, has been concisely stated by Lindley, L. J., in Lauri v. Renad [1892] 3 Ch. 402, at p. 421, thus:

It is a fundamental rule of English law that no statute shall be construed so as to have a retrospective operation, unless its language is such as plainly to require such construction. And the same rule involves another and subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.

7. Now, it is plain, upon a reading of the sub-section that it is an ex post facto law and like all ex post facto legislation is retrospective in the sense that it created for a person who was not a settled ryot under the law as it stood before the status of a settled ryot and on the other hand took away such vested rights of the landlord as he may have had on the ground of that person not having been a settled ryot. In that way, no doubt, the sub-section was retrospective in its effect. But the other question at once arises and that is to what extent is its retrospective operation rendered necessary by its language. In other words, is it necessary to interprete the sub-section as indicating that the sub-section was intended to control the section as it stood even before the sub-section was introduced There are, in our opinion, no words in the Act, by which the subsection was enacted, which may be construed as indicating such an intention. It is well settled that

in general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights: Maxwell, Edn. 7, p. 192.

8. In the present case no such intention appears.

9. The result is that we agree with our learned brother S. K. Ghose, J., in so far as he has held:

If it is held that the amendment of 1925 did not affect the position in favour of the defendant then the whole object of the amendment would be lost. It would be meaningless to say that in the case of the present defendant his occupancy right is to accrue from after the date of the amendment that is in 1925.

10. We agree that the defendant acquired the status of a settled ryot on twelve years' continuous occupation since 1896 or 1897, that is to say, since the inception of the tenancy, though the area was declared a village much later, i.e., in 1912. But we hold that it was not possible for the defendant to take up this plea in 1922 when the action was commenced, and that the law as it stood at that date and as explained in the case of Jonah Molla v. Port Canning and Land Improvement Co. Ltd. must decide the rights of the parties to the suit, the legislature not having expressed any clear intention that the subsection was declaratory of the law prior to the date when the subsection came into force, or to vary their relative rights notwithstanding that an action had been commenced on the basis of such rights.

11. Two decisions of this Court have been referred to in the judgment under appeal. One is the case of Maniruddin Mondal v. Sm. Charusila Debi [1928] 114 I.C. 150, and the other an unreported case S. A. No. 347 of 1925 decided on 14th July 1927. In the former case there was no appearance on behalf of the respondent and the decision was an ex parte one; and in neither of the two cases was any question raised or argued or expressly decided as to whether the new law should govern a pending suit. We accordingly do not feel pressed by the authority of these decisions.

12. The appeal is accordingly allowed and the decision under appeal being set aside that of the Subordinate Judge is restored with costs in this Court and the Court below.


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