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Appeal from Appellate Decree No. 886 of 1964, decided on 24th April 1968.

, S. 100 Second Appeal ‑ Raising question of fact in second appeal by filing affidavit ‑ Not permissible‑Question whether disputed property belonged to Hat or Bazar‑A question of fact‑Such question not having been raised either before trial Court or lower appellate Court‑Cannot be raised in Second Appeal‑East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), S. 20.

, S. 20 (2) (a) Hat or Bazar ‑ Mere proximity to Hat or Bazar‑Does not make a shop as a building in a Hat.

Moinul Huque for Appellant.

Jahurul Haque Khan for Respondents.

The defendant is the appellant before me. The plaintiff filed a suit for declaration of title and for khas possession in the suit land as detailed in the schedule to the plaint after ejecting the defendants therefrom.

The plaintiff's case was that she was the owner of half the superior raiyati interest of the disputed Chandina holding detailed in the schedule to the plaint which she purchased in execution of a decree for arrears of rents and took delivery of possession through Court on different dates starting from 1948 A. D. The plaintiff was kept out of possession in spite of delivery of possession through Court by the defendants who have constructed huts upon the lands of the disputed Chandina holdings taking the advantage of the fact that they hold the surrounding lands. Defendants have raised huts upon the disputed lands in the last part of Aswin 1363 B. S. and hence the suit.

The defendant No. 1 contested the suit by filing a written statement. The main plea of the defendant was that the auction sale and purchase of the Chandina holdings in question were fraudulent and all the processes of the execution proceedings had been suppressed. Moreover the defendants challenged the very decree obtained by the plaintiff on the ground that a wrong, person was shown as the co‑sharer landlord. The defendant further pleaded that he had paid the rent for the aforesaid period for which the decree was passed and the plaintiff had obtained a fraudulent decree for rent and purchased the holding in execution thereof. The defendants also plead misjoinder of causes of action.

The learned Munsif on an analysis of the documentary evidence namely Exh: No. I series, the certified copies of the writ of delivery of possession and return thereof held that the plaintiff did have title in the disputed holdings. He further held that neither the decree nor the sale has been set aside by any competent authority and as such the plaintiff was entitled to get. khas possession of the suit land if the present suit was within time. He found that the suit was filed within 12 years from the date of taking delivery of possession in all the aforesaid execution proceedings. The documentary evidence as to possession has been corroborated by the evidence of P. W. 1 the husband of the plaintiff and of P. W. 2 one Mantu Mia. The evidence as to act of dispossession by the defendants from the last part 1363 B. S. were also given by these two witnesses. The defendants, however, did not claim the properties of Khatians other than 66, 65 and 67, they claimed that they had huts on the land of those Khatians 66, 65 and 67.

So far as the plea of misjoinder is concerned the defendants pleaded before the trial Court misjoinder of causes of action. The contention of the defendants was that the cause of action as arising were very distinct and separate delivery of possession taken by the plaintiff through Court and they could not be joined together. But the learned Munsif on a reference to Order II, rule 3 overruled the contention. The learned Munsif, therefore, decreed the suit. On appeal the learned Subordinate Judge on an independent consideration of the evidence and argument before him affirmed the decision of the trial Court as to the title of the plaintiff in the disputed land. So far as the question of misjoinder it was argued before him that certain persons were not impleaded but no specific person was mentioned in the written statement and as such he overruled that point. It was next argued before him that the suit was bad for misjoinder of causes of action. On this point also it was overruled by the appellate Court and the judgment of the trial Court was affirmed.

In the second appeal before me it has been contended by Mr. Moinul Hoque appearing on behalf of the defendants‑respon dents that the suit was not maintainable in view of the fact that after 14th of April 1956, no private person could have any owner ship or title in the Chandina Bhiti in view of the amendment of section 20 of the Estate Acquisition Act. In any case he argued that no order for delivery of khas possession could be made. He has drawn my attention to the affidavit filed in C. R. Case No. 146 of 1967 which was at the instance of the petitioner heard analogously with this second appeal. That C. R. case arises out of an application by the defendant to set aside the sale pursuant to which the plaintiff purchased the disputed land. He referred to the statement in the said petition to the effect that the disputed property is a Chandina holding within Chawmahani Bazar and he argued that there was no denial of that statement by the plaintiff‑respondent‑opposite‑party in that case. At a later stage of the hearing on 17‑4‑1968 the petitioner in the said revision case filed an application stating that the rule had become infructuous and he did not press the rule and as such the rule was discharged. Be that as it may the appellant has filed an affidavit in this case by one Shamsul Haque who claimed to be a brother of the appellant and a respondent in the case that the properties in dispute in the case are Chandina holdings fn Sonaimani Bazar. An affidavit‑in‑reply has been given by the husband of the plaintiff, one Mostafa Haider Chowdhury to the effect that the lands were vacant Chandina lands since 1945 and the bazar does not sit in the disputed land or near suit lands. He further said that the bazar has shifted towards the south at about 500 cubits from the suit land and that the said Chandina holding were not acquired by the Government for Hat or bazar or for any other purpose nor any assessment roll was prepared for the said land. The suit was filed on 14th of June 1960. The relevant amendment in section 20 was made some time before that and as such the plaintiff's suit according to Mr. Moinul Hoque was not maintainable. Hats and bazars being non -retainable khas land, he argued, only Government was entitled to possess it and it was for the Government to give the land to any body it liked and the plaintiffs could not have any locus standi to sue the defendant for eviction.

The suit was filed on 14th of June 1960. But this point was not raised either before the trial Court or before the first appel late Court. It is not a question of law whether the property belongs in fact to a bazar or not. This was a matter of evidence, which if the defendant had raised in the trial Court the plaintiff would have been able to rebut but to raise this question of fact in a second appeal by filing an affidavit to my mind is not permissible. In any case the affidavit on behalf of the plaintiff totally negatives this contention of Mr. Moinul Haque. The second branch of the argument of Mr. Moinul Haque also fails inas much as if the properties claimed by the plaintiff are not a part of the bazar but a property situate some distance from an existing bazar, then it has not stood acquired by virtue of the amendment of section 20. The proviso as embodied in subsection 2(a) of section 20 states that the retainable land do not include and shall never deemed to have included any land or building in a Hat or bazar. It often happened that private persons raise shops near about a bazar or a Hat but mere proximity to a Hat would not make it as building in a Hat. It must be clearly shown that the disputed property is in a Hat or bazar. No issue was framed with regard to this point and as I have shown above the issue of misjoinder and non‑joinder was raised on totally different matters.

Even if it has been possible for me to hold that the disputed property is in a particular Hat or bazar as claimed by Mr. Moinul Haque, which I am unable to do as already stated, it would be very doubtful whether the first proposition of Mr. Moinul Haque would still be available. On the date that is the date of the wholesale acquisition that is on 14th of April 1956, the title to the land was admittedly with that of the plaintiff. Supposing the plaintiff had been in possession she would have become a tenant under the Government if the property is really in a Hat or bazar. But the plaintiff's case is that she could not get possession of the property being prevented by the defendants. So as between the plaintiff and the defendant, the cause of action is the right to possess the disputed property. It has got nothing to do with the Government. Just as between the two raiyat in a suit for declaration of title and khas possession the Zamindar has got no interest. The above proposition holds good even in the case of Chandinaviti lands although the tenants may be merely tenants‑at‑will and they can be ejected by the Govern ment whenever it likes. I need not go into the question whether the Government can eject a tenant in a bazar at will. But the fact remains that the defendant has continued in possession since the time that the plaintiff was entitled to do so; that is, at least since the date of purchase by the plaintiff. The decree is between the plaintiff and the defendant as to the right of possession in the disputed holding. If the civil Court finds that the defendant has no right to the holding and that the plaintiff has got title to the holding then I do not see why it cannot give a decree for possession as well. It would be for the Government to recognise the plaintiff or not; but the civil Court's powers does not extend not only to declare that the plaintiff has got title but also to give possession to the plaintiff of the disputed property as against the defendant. In view of those facts and circumstances the appeal is dismissed with costs.

Leave to appeal under clause 15 of the Letter's patent is prayed for and is granted.

A. E. Appeal dismissed.

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