1. This is a Rule under Article 227 of the Constitution of India obtained by the bargadars against an order of the appellate officer, Hooghly, affirming a decision of the Bhagchas Conciliation Board under Section 7, West Bengal Bargadars Act, 1950.
2. The opposite parties initiated a proceeding under Section 7, Bargadars Act, for delivery of the produce and for termination of cultivation of the lands by the Bargadars. The case of the opposite parties was that the disputed land belonged to one Hakim Bux Haldar and that the opposite parties obtained title to this land under a deed of exchange executed by the said Hakim Bux Haldar. It was alleged that the petitioners were bargadars under the said Hakim Bux Haldar and they were liable to pay the barga produce to the opposite parties after the execution of the deed of exchange.
3. This proceeding was contested by the petitioners bargadars on the ground that there was no relationship of owner & bargadar between them & the opposite parties and therefore Section 7, Bargadars Act did not apply. They also alleged that the opposite parties had acquired no title to the disputed land because the deed of exchange under which they claim to obtain title was void and inoperative. After the institution of the proceedings under Section 7, Bargadars Act, the petitioners instituted a title suit, namely, Title Suit No. 89 of 1952, in the Second Munsif's Court, Hooghly, for a declaration that no relationship of owner and bargadar exists between the opposite parties and the petitioners and as such the Bhag Chas Conciliation Board had no jurisdiction to entertain the application under the Bargadars Act.
4. The Bhag Chas Conciliation Board overruled the defence and made an award in favour of the opposite parties. Against that award the petitioners filed an appeal before the Appellate Officer, Hooghly. The learned Appellate Officer dismissed that appeal by a judgment dated 25-8-1952. Against this judgment the petitioners have obtained the present Rule.
5. Mr. Pal appearing in support of the Rule has raised the question that under Section 7, West Bengal Bargadars Act, the Bhag Chas Conciliation Board has no jurisdiction to decide a disputed question of title and as such the award made by the Board is liable to be set aside.
6. Now Section 7, West Bengal Bargadars Act, 1950, enumerates four matters which can be decided by the Bhag Chas Conciliation Board. They are (a) the division or delivery of the produce; (b) the priority of the right to supply plough-cattle, etc.; (c) the termination of or the restoration to cultivation of such land by the bargadar and (d) the place of thrashing or the place of delivery of the owner's share of the produce. It is quite clear that the question of title does not come under any of the four items mentioned above. The preamble to the Act also makes it clear that only certain rights between the bargadar and the owner of land can be decided by the Bhag Chas Conciliation Board constituted under the Act. Therefore-we have to consider the question whether the Bhag Chas Conciliation Board had jurisdiction to give its decision on the question of the existence of relationship of owner and bargadar as between the petitioner and the opposite parties.
In order to construe the provisions of this statute we think we are entitled to examine the relevant provisions of another statute, namely, the Provincial Small Cause Courts Act. By Section 15, Provincial Small Cause Courts Act a Court of Small Causes is debarred from taking cognizance of a suit specified in the Second Schedule of the Act as excepted from the cognizance of Small Cause Courts. Suits for accounts and suits for the recovery of interest in immovable property are excepted from the cognizance of the Provincial Small Cause Courts Act. In spite of these provisions it has been held in a number of decisions of this Court as well as of other High Courts that if the relief asked for is of a small cause nature, the suit is a small cause and triable by the Small Cause Court even though it incidentally raises the question of title to immovable property. Reference may in this connection be made to the decision of this Court in the case of -- 'Kshetranath Banerjee v. Kali Dasi Dasi', AIR 1918 Cal 1037 (A), where it has been held that where the suit is for the payment of money it is triable by a Small Cause Court even though accounts may have to be taken. So also it has been held in the case of -- 'Elahi Buksh Mandal v. Ram Narayan Ghosh', 16 Cal W N 288 (B), that in a suit for damages for trespass the question of title may incidentally be gone into. This decision was cited with approval in the case of -- 'Saharali Mollah v. Bhola Mollah', AIR 1919 Cal 205 (C). Amongst the decisions of other High Courts reference may be made to the decision of the Full Bench of the Bombay High Court in the case of -- 'Puttangowada v. Nil Kantha', 37 Bom 675 (D).
It seems to us that in order to determine the jurisdiction of the Bhag Chas Conciliation Board we have to look into the nature of the reliefs sought for by the applicants and that the nature of the defence does not determine the jurisdiction of the Board. If the reliefs asked for by the applicants come under any one or more of the clauses enumerated in Section 7 of the Act, the Bhag Chas Conciliation Board will have Jurisdiction to decide the case even if the objectors in their objection raise questions which are not within the purview of that section. The decision of the Board on any of the matters not included in Section 7(1) of the Act will not certainly be final or conclusive and will not be binding between the parties, but we think that the Board will have jurisdiction to decide those questions incidentally for the purpose of adjudicating on the applicants' claim. It is ancillary or incidental relief asked for by the applicants. The decision of the Board on any of the matters which are not covered by the four clauses of Section 7(1) will not attract the operation of Section 9(2) of the Act, because the Board is not required to-decide those questions under Section 7(1) and this decision may very well be challenged in a Civil Court as erroneous. If the Board be held to have no-jurisdiction whatsoever to go into any question of title it is quite possible that the objectors to a proceeding under Section 7(1) may oust the jurisdiction of the Board by raising a question which does not come under the four clauses mentioned in Sub-section (1). For these reasons we are inclined to hold that the question of existence of the relationship of owner and bargadar may be incidentally decided by the Board in order to give relief to the applicants in a proceeding under Section 7. There is no doubt that in the present case the reliefs sought for by the applicants come under Clauses (a) and (c) of Sub-section (1) of Section 7 and the question of title arises only on the objection of the petitioners. We hold that the Bhag Chas Conciliation Board had jurisdiction to decide that question as ancillary to the reliefs asked for by the applicants, though the decision given by the Board is not final or conclusive.
7. Reliance was placed upon the observations of Lord Esher in the case of -- 'Queen v. Commissioners for Special Purposes of the Income-Tax', (1888)) 21 Q B D 313 at p. 319 (E), which were quoted with approval by the Supreme Court in the case of -- 'Rai Brijraj Krishna v. S.K. Shaw & Brothers', 1951 SCR (cwn sup) 98 at p. 104 (F), for the proposition that Board has no jurisdiction to decide the disputed question of title even incidentally for the purpose of adjudicating on the applicants' claim. The observations run as follows:
'When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that if a certain state of facts exists and is shown to such tribunal or body, before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction.'
8. From the passage quoted above, it does not follow that a question not included in any one of the four clauses enumerated in Sub-section (1) of Section 7 may not be decided even incidentally. All that is said is that if the question is decided, its decision is liable to be challenged. We have already said that the decision given by the Bhag Chas Conciliation Board in the present proceedings will not be conclusive and binding between the parties and therefore the conclusion at which we have arrived is not contrary to the principles laid down above. The first point raised by Mr. Pal must accordingly fail.
9. The second point raised in support of the Rule is that the application filed by the opposite parties under Section 7(1) of the Act was not verified in the manner provided for by Rule 6(2) of the Rules framed under the Act. This Rule provides that every application under Section 7 shall be signed and verified in the manner provided in Sub-rule (2) and (3) of Rule 15, Order 6, Civil P. C. and must contain the particulars enumerated in that Rule. Reliance was placed by Mr. Pal upon the decision in the case of -- 'Narendra Nath Sashmal v. Binode Behari Dey', : AIR1951Cal138 (G) in support of the view that non-compliance with the provisions of the aforesaid Rule is a fatal defect and the application filed by the opposite parties is liable to be dismissed on this ground.
In the case before us, however, it appears that the petitioners did not raise this objection either before the Board or before the appellate officer, nor did they raise it in their petition of objection. The memorandum of appeal which was filed by the petitioners before the appellate officer was not also verified in the manner provided for by Rule 11, the provisions of which are very similar to the provisions of Rule 6(2). In these circumstances, we are of the opinion that the petitioners waived the objection on this point, & they cannot be allowed to raise It for the first time in this Court. In the case in -- ' : AIR1951Cal138 (G)', relied upon by Mr. Pal, the objection as to the non-compliance with the provisions of Rule 6(2) was pressed before the Board as well as the appellate officer, but that objection, was overruled. This is a circumstance which, in our opinion, differentiates that case from the facts of the present case. We are, therefore, unable to give effect to the second point raised by Mr. Pal.
10. The third point raised by Mr. Pal relates to the order as to termination of cultivation of the disputed land by the petitioners. Mr. Pal contends that in order to get an order for the termination of cultivation the opposite parties must prove that the owner desires to cultivate the land by himself, or by members of his family, or by servants or labourers. It is not quite correct to say that the owner can ask for termination of cultivation only upon this ground. Section 5 of the Act enumerates four grounds upon which the owner is entitled to ask for termination of cultivation by the bargadar. From the petition of objection filed by the bargadars before the Bhag Chas Conciliation Board it does not appear that they objected to the termination of cultivation for non-compliance with the provisions of the different clauses of Section 5 of the Act. As the point raised before us involves a consideration of questions of facts and as this point was not raised by the petitioners either before the Bhag Chas Conciliation Board or in their petition of objection, we are afraid we cannot allow the petitioners to raise that point for the first time in this Court.
11. As all the points raised by the petitioners before us fail, this Rule must be discharged, but in the circumstances of this case we do not make any order as to costs of this Rule.