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Brojo Mohan Pal Vs. Darsan Pal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1929Cal308
AppellantBrojo Mohan Pal
RespondentDarsan Pal and ors.
Cases ReferredApurba Krishna v. Atarmani
Excerpt:
- .....act, operates as a bar to the maintainability of the suit.3. in support of the contention that the present suit is not barred by reason of the provisions contained in section 109, ben. ten. act, a number of decisions has been drawn to our notice, many of which deal with the question whether a previous application under section 105, ben. ten. act, did or did not bar a subsequent suit. we do not propose to deal with those decisions because we are of opinion that in the present case we have really to consider only two questions : first: what, in fact, was the scope of the suit under section 106, ben. ten. act, as framed ; and second ; how much of that suit was triable by the revenue officer acting under the provisions of that section. section 109, ben ten act, would operate as a bar only to.....
Judgment:

1. This appeal arises out of a suit for recovery of possession on declaration of title. The plaintiff's case was that he purchased the lands in suit from defendant 3 in August 1906, that in the kobala under which he purchased there was no mention of there having been any tenants on the land, that in the Settlement Record of the Khas Mehal finally published in 1910 the plaintiff was recorded as occupancy ryot in respect of the land, that subsequently in the Record-of-Rights finally published in 1918, the lands were recorded in the names of defendants 1 and 2 under defendant 3. The plaintiff alleged that he had instituted a suit under Section 106, Ben. Ten. Act, for correction of the entry in the Record-of-Rights but withdrew from the suit with liberty to bring a fresh suit. He averred that he was dispossessed by the defendants in July 1922. The prayer for declaration of title was based on the purchase as also on adverse possession for the statutory period. There was a prayer for recovery of possession, and it was further prayed that if it be found that defendant 3 had maliki right, the plaintiff might be given a decree for possession on declaration of his jote right to the land.

2. It is unnecessary to set out the defence because the only plea on which the suit has been dismissed is that Section 109, Ben., Ten. Act, operates as a bar to the maintainability of the suit.

3. In support of the contention that the present suit is not barred by reason of the provisions contained in Section 109, Ben. Ten. Act, a number of decisions has been drawn to our notice, many of which deal with the question whether a previous application under Section 105, Ben. Ten. Act, did or did not bar a subsequent suit. We do not propose to deal with those decisions because we are of opinion that in the present case we have really to consider only two questions : first: What, in fact, was the scope of the suit under Section 106, Ben. Ten. Act, as framed ; and second ; How much of that suit was triable by the Revenue Officer acting under the provisions of that section. Section 109, Ben Ten Act, would operate as a bar only to the extent that the suit as laid under Section 106 fell within the purview of the Revenue Officer's functions under that section. Having examined the plaint in. the suit under Section 106 we find that it asked for correction of the entry in the Record-of-Rights by inserting the name as niskardar in respect of the lands, on a declaration that the plaintiff's title by purchase from defendant 3 had been established, and also a correction of the said entry by expunging the names of defendants 1, 2 and 3 on a declaration that they had no right to or possession in the lands. It has been urged before us on behalf of the appellant that the prayer for possession, which there is in the present suit, was not and could not be included in the suit under Section 106. This contention cannot be refuted : see, e.g, Pran Krishna v. Trailakhyanath [1915] 19 C.W.N. 911, Kali Sundari v. Girija Sankar [1911] 15 C.W.N. 974. But then it. will not be possible to give him any relief in respect of this prayer unless he obtains a declaration of his title to the lands. It has been urged on behalf of the appellants that the Revenue Officer could not have gone into the question of his title as against defendant 3. In support of this contention reliance has been placed upon several oases which will now be noticed. The first case relied upon is that of Padmanav Ramanuja Das v. Lukmi Rani [1908] 12 C.W.N. 8. In this case there is no doubt a passage in the judgment of Woodroffe, J., which would seem to indicate that the question of possession alone should be considered in a suit under Section 106; but Coxe, J., observed that

it is evident that in proceedings under the Bengal Tenancy Act no disputes of title between rival proprietors, considered merely as proprietors can legitimately arise, (p. 13),

and again, that suits under Section 06 are

suits between tenant and tenant or between landlord and tenant in which questions other than that of possession may legitimately arise (p. 15).

4. The observations of Woodroffe, J., therefore should be taken as limited to the peculiar facts of the case itself, namely, that the dispute concerned two rival proprietors without any question arising as between any of them and the tenants. The case of Ram Chandra v. Nanda [1914] 19 C.L.J. 197, in which Padmanav's case [1908] 12 C.W.N. 8 was referred to does not really help the appellant because there the question of possession had not at all been investigated and while remanding the case for an investigation of that question, it was observed that the Bengal Tenancy Act deals with relations of landlord and tenants and it is no part of its purpose to regulate disputes between rival proprietors, except in so far as such disputes affect their relations with their tenants, and the view of Cox, J., in Padmanav's case [1908] 12 C.W.N. 8 was adopted and affirmed by the learned Judges. The view of Coxe, J., in Padmanav's case [1908] 12 C.W.N. 8 was agreed in by Carnduff, J., in Ensar Ali v. Ansar Ali [1912] 13 I.C. 311. That such dispute does not fall within the purview of Section 106 has also been held in a recent decision of this Court, namely in Asra-funnessa v. Hem Chandra : AIR1927Cal216 . Another case upon which some reliance has been placed on behalf of the appellants is that of Aswini Kumar v. Sardar Charan [1916] 24 C.L.J. 79. In that case there was an observation to the effect that these matters (meaning prayer for declaration of title and recovery of possession) are entirely foreign to the jurisdiction of the Revenue Officer under Section 106. The fact of that case in so far as it appears from the report was that the suit was between two rival proprietors ; but whatever that may be not much weight was attached to these observations in the latter case of Apurba Krishna v. Atarmani [1920] 64 I.C. 889, in which all these cases were reviewed and it was said that in a suit under Section 106, Ben. Ten. Act, for correction of the Record-of-Rights when the Revenue Officer proceeds to decide the dispute he has to determine not merely whether certain words should or should not remain unchanged in the records but also whether the facts described by those words are correct, and the contention that the scope of the suit should not extend to questions of title was overruled. We are of opinion that the appellant's argument, that the scope of the suit under Section 106 in the present case was or should be, confined to questions of possession, must fail.

5. At the same time we think that the present suit should not be thrown out altogether. The plaintiff's title in so far as it is based upon his allegation of adverse possession for the statutory period was not, in fact, within the scope of the plaint in the suit under Section 106, Ben. Ten. Act. He is fully competent to agitate this part of his title in the present suit and get in it such reliefs, if any, against the defendants as the law may entitle him to. We accordingly allow the appeal and setting aside the decisions of the Courts below remand the suit in the limited form indicated above to the trial Court for trial. All costs incurred up till now (including the costs in this appeal) will be costs in the cause.


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