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Pratap Chandra Jana Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1922Cal101,67Ind.Cas.375
AppellantPratap Chandra Jana
RespondentThe Secretary of State for India in Council
Cases ReferredDhiraj Chandra Bose v. Hari Dasi Debi
Excerpt:
bengal tenancy act (viii of 1885), sections 103b, 104h and 104g, part ii, chapter x - rent, settlement of--record of rights, entry in, conclusive--public demands recovery act (iii of 1913), sections 4 and 37--supplementary certificate, whether legal--civil procedure code (act v of 1908), o ii, rule 2--recognition of rule 2 in revenue courts--'public demand', meaning of--jurisdiction of civil courts, when ousted. - .....surveyed and the rent was settled under part ii of chapter x of the bengal tenancy act, and the record of rights, which was finally published on the 31st may 1910, contained an entry to the effect that the rent payable by the defendant was rs. 25-7 annas a year. rant appears to have been realised at this rate for the year following the publication of the record. on the 31st may 1915 a certificate was made under section 4 of the public demands recovery act, 1913, for a sum of rs. 54-15-3. the certificate set out the details which showed that, calculated at the rate of rs. 25-7-0 per annum, the amount in arrears for the bengali years 1320, 1321 and 1322 amounted to rs. 54-15-3, subsequently, on the 4th december 1915, another certificate was made for rs. 220-6-3. this certificate also.....
Judgment:

1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Huda in a suit for a declaration that a certificate issued under the Public Demands Recovery Act, 1913, was ultra vires, for refund of the amount recovered thereunder, and for a permanent injunction to restrain the Secretary of State for India from the issue of similar certificates in future. The Court of first instance decreed the suit. On appeal the Subordinate Judge dismissed the suit. On second appeal to this Court, Mr. Justice Huda confirmed this decision. We are now invited to hold that the suit had been rightly decreed by the Trial Court, as the proceedings of the Revenue Authorities were without jurisdiction.

2. The facts material for the determination of the question in controversy may be briefly outlined. The plaintiff holds a tenancy under the Secretary of State for India within a temporarily settled area. The land was surveyed and the rent was settled under Part II of Chapter X of the Bengal Tenancy Act, and the Record of Rights, which was finally published on the 31st May 1910, contained an entry to the effect that the rent payable by the defendant was Rs. 25-7 annas a year. Rant appears to have been realised at this rate for the year following the publication of the record. On the 31st May 1915 a certificate was made under Section 4 of the Public Demands Recovery Act, 1913, for a sum of Rs. 54-15-3. The certificate set out the details which showed that, calculated at the rate of Rs. 25-7-0 per annum, the amount in arrears for the Bengali years 1320, 1321 and 1322 amounted to Rs. 54-15-3, Subsequently, on the 4th December 1915, another certificate was made for Rs. 220-6-3. This certificate also set out details which showed that, calculated at the rate of Rs. 85 a year, a sum of Rs. 220-6-3 was due in respect of the years 1319, 1320, 1321 and 1322, after deduction of the amount covered by the previous certificate and amicably paid. The Revenue Authorities proceeded to sell the tenure in execution of, the second certificate, with the result that the plaintiff was compelled to deposit the amount claimed and thereby to avert the sale. On the 23rd February 1918, the plaintiff commenced this litigation on the allegation that the issue of the supplementary certificate and the institution of proceedings for enforcement thereof were without jurisdiction. On behalf of the Secretary of State, the suit was defended on the ground that the entry in the Record of Rights was erroneous, that rant had been settled at Rs. 85 a year in a dispute case on the 27th March 1909, and that this was overlooked when the record was finally prepared and published. Two questions thereupon emerged for consideration, namely, first, whether it was competent to the Secretary of State to raise the question of the accuracy of the entry in the Record of Rights, and, secondly, if the question of correctness of the entry was open for consideration, whether it was competent to the Revenue Authorities to make a supplemental certificate for the period covered by the first certificate. The Courts below have expressed divergent opinions upon these points.

3. As regards the first question, the plaintiff maintains that Section 104-J of the Bengal Tenancy Act raises an irrebuttable presumption in favour of the entry in the Record of Rights. This section provides that subject to the provision of Section 104-H, all rents settled under Sections 104-A to 104-F and entered in a Record of Rights finally published under Section 103-A or settled under Section 104-G, shall be deemed to have been correctly settled and to be fair and equitable rents within the meaning of the Bangal Tenancy Act. The effect of this provision is that when a settlement of rent has been made under Part II of Chapter X, no evidence is admissible to prove that rent is payable at a rate different from that entered in the rent roll, Section 103-B which finds a place in Part I does not operate to modify the effect of Section 101-J which finds a place in Part II. The substance of the matter is that the entry in the Record of Rights is conclusive, unless altered by means of a suit instituted under Section 104-H, Sub-section 2 within sis months from the date of the certificate of final publication of the Record of Rights or, if an appeal has been presented to a Revenue Authority under Section 104-G, then within six months from the date of the disposal of such appeal. The expression 'deemed to have been correctly settled' would be meaningless, if the entry raised only a rebuttable presumption. The view we take is in accord with that adopted in Ambica Charan v. Joy Chandra Ghosh 4 Ind. Cas. 470 : 13 C.W.N. 210, Prasanna Kumar v. Rachimuddin Howladar 15 Ind. Cas. 337 : 17 C.W.N. 153, Baikuntha Nath Ghose v. Sodananda Mohapatra [Prasanna Kumar] 46 Ind. Cas. 287 : 23 C.W.N. 516, Profulla Narain v. Palku Mohammad 63 Ind. Cas. 122 : 23 C.W.N. 860. In the case before us the time for the institution of a suit under Section 104-H, Sub-section (2) expired on the 30th November 1910. On the other hand, the time for an appeal to the Superior Revenue Authority expired on the 31st July 1910, and the period prescribed for possible revision by the Board of Revenue terminated on the 31st May 1912. The Revenue Authorities have not availed themselves of the normal procedure; they cannot now be permitted to re-open the matter and re-agitate the question in a different forum by way of defence to an action which the tenant has been obliged to institute by reason of the seizure of his properties by summary process. The Record of Rights, finally published on the 31st May 1910, has never been amended, and the time prescribed for amendment has elapsed. It appears that in 1915, after the issue of the first certificate, some Revenue Officer discovered the inconsistency between the decision of the Settlement Officer in the dispute case dated the 27th March 1909, and the entry in the Record of Rights finally published on the 31st May 1910. He then proceeded to correct the copy of the Record of Rights which was in his custody, and this was made the basis for the issue of the supplemental certificate. The procedure was manifestly unauthorised. The original record has never been and can no longer be amended in accordance with law. There was thus no foundation for the issue of the supplemental certificate and the entry in the Record of Rights must be deemed conclusive between the Secretary of State and the tenant.

4. As regards the second question, the plaintiff maintains that, even if it be assumed that the Revenue Authorities are at liberty to establish now the inaccuracy of the entry in the Record of Rights, it is not open to them to issue a supplemental certificate for the period covered by the certificate previously issued. We are of opinion that this contention is of considerable force. Section 4 of the Public Bernards Recovery Act, 1913, provides that when the Certificate Officer is satisfied that any public demand payable to the Collector is due, he any sign a certificate, in the prescribed form, and stating that the demand is due, and shall cause the certificate to be filed in his office. It is plain that the certificate so filed is intended to cover the entire demand due at the time. The 'public demand', mentioned in Section 4 and defined in Section 3, Clause (6), read with Clause (7), of Schedule I includes a demand payable to the collector by a person holding any interest in land, when such demand is a condition of the use and enjoyment of the land. We are of opinion that Section 4 should not be to interpreted as to authorise the issue of more than one certificate in the prescribed form (Appendix, form 1) with regard to a single demand broken up into fragments. Such an interpretation would violate the cardinal rule for the avoidance of multiplicity of proceedings. That rule is recognised by the Legislature in Order II, Rule 2 of the Civil Procedure Code, 1908, which requires that every suit shall include the whole of the claim which a plaintiff is entitled to make in respect of the cause of action, with the necessary corollary that where the plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim, be cannot afterwards sue in respect of the portion so omitted or relinquished. This principle has been held applicable to proceedings in Revenue Courts for recovery of arrears of rent; see Madho Prakash Singh v. Murli Manohar 6 A. 406 (F.B); A.W.N. (1833) 92 : 3 Ind. Dec. (N.S. ) 406 and Adhirami Narain Kumari v. Raghu Mahapato 12 C. 50 : 6 Ind. Dec. (N.S.) 81, As pointed out by the Judicial Committee in Moonshee Buloor Raheem v. Shumsoonnissa Begum 11 M.I.A. 551 at p. 601 : 8 W.R.P.C. 2 : 2 Suth. P.C.J. 59 : 2 Sar. P.C.J. 259 : 20 E.R. 208, the doctrine applies to cases not merely of deliberate relinquishment but also of accidental or involuntary omission. From this standpoint, the issue of the supplemental certificate was entirely unauthorised.

5. As a last resort, it has been urged that Section 37, real with Section 35 of, the Public Demands Recovery Act which specifies the grounds for cancellation or modification of a certificate by the Civil Court bars the present suit. There is plainly no foundation for this contention. The action of the Revenue Authorities was wholly unauthorised, constituting a colourable exercise and consequently a flagrant abuse of the provisions of the Statute. In such circumstances, Section 37 does not oust the jurisdiction of the Civil Court to make a declaration, to issue an injunction or otherwise to grant adequate relief; Reajuddin v. Shahamutulla 60 Ind. Cas. 759, Dhiraj Chandra Bose v. Hari Dasi Debi 29 Ind. Cas. 290 : 42 I.A. 58 : 42 C. 765 : 19 C.W.N. 507 28 M.L.J. 480 : 2 L.W. 422 (P.C).

6. The result is that this appeal is allowed the judgment of Mr. Justice Huda in affirmance of that of the Subordinate Judge is set aside and the decree of the Primary Court is restored with costs throughout.


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