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Appeal from Original Decree No. 98 of 1962, decided on 28th June 1968.
Ss. 3(4)(e) & 44 read with Chapter V--‑Non -retainable khas land, tenant of‑Can be dispossessed only after steps enumerated in Chap. V have been taken.
A tenant can be dispossessed of his non‑retainable khas land only when the steps enumerated in various sections in Chapter V, have been taken. So far as a tenant is concerned the classification of his khas land is determined after the prepara tion of record‑of‑rights and possession thereof is to be taken after completing the steps detailed in Chapter V of the Act. Preparation of the record‑of‑rights involves decision as to whether land is agricultural land, or a fishery or a hat or bazar and then the consequences set out in various clauses under section 44 would ensue. He is, therefore, entitled to claim to be informed that those steps have been taken. In a Court of law, when challenged that those steps have not been taken, the Provincial Government which seeks to take possession of those non‑retain able khas lands would be called upon to prove that the require ments of law have been complied with.
Jibendra Kishore Acharya v. Province of East Pakistan P L D 1957 S C (Pak.) 9 and Province of East Pakistan and others v. The Secretary, Muktagacha Abbasia Senior Madrasha P L D 1964 S C 401 rel.
S. 107 read with 5 Registration Act (XVI of 1908), S. 17(1)(d)---‑Lease given by unregistered document for more than one year---‑Creates no tenancy for that number of years‑--Tenancy, held, still valid for one year.
Plaintiff had taken settlement of fishery for eleven years but the amalnama was not registered. It was argued that the amal nama being an unregistered document could not operate to create a right in the land because the demise was a lease within the meaning of section 17(1)(d) of the Registration Act, 1908 and, therefore, its registration was necessary. It was argued on behalf of plaintiff that the said document although not registered may be received in evidence for a collateral purpose together with the evidence relating to possession and that though the amalnama purported to create a lease for eleven years yet owing .to its not being registered it fails to create tenancy for eleven years, but, nevertheless created a tenancy for one year:
Held: this is clear from the provisions of section 107. of the Transfer of Property Act which provides that a lease of immov able property from year to year or for any term exceeding one year or reserving a yearly rent can be made only by a regis tered instrument. It is also true that although there could not be any, lease for all the eleven years in the absence of a registered instrument, in the instant case there was still a tenancy for a period of one year.' The lower Court has found that the plaintiff is in possession and the amalnama shows that the rent was paid for the year. 1962 B. S. He was, therefore, a tenant for that particular year only.
Sanjib Chandra Sanyal v. Santosh Kumar Lahiri and others 26 C W N 329 and Almasullah and others v. Srish Chandra Dam and others 3 D L R 526 ref.
S. 116‑--Tenancy ---Holding over‑Tenant continuing in possession must prove assent to such continuance or acceptance of rent by landlord.
A tenant who continues in possession has to prove that there was assent to his continuance or acceptance of rent from his land lord in order to derive the benefit of section 116 of the Transfer of Property Act.
Sm. Lalita Roy and others v. Rafiqullah Khan 18 D L R 107; Mod Lal Karnani v. Darjeeling Municipality 17 C L J 167; Gobinda Chandra Shaha and another v. Dwarka Nath Patita 19 C W N 489; Alauddin Ahmad v. Aziz Ahmad and others A I R 1934 Pat. 369 and Kaikhushroo Bezonjeg Capadia v. Bai Jerbai Hirjibhoy Wardan and another I L R 1949 Bom. 660 ref.
Siddique Ahmed Chaudhry, Assistant Government Pleader for Appellant.
Nizamuddin Haider with Abdur Rob II and Korban Ali for Respondent No. 1.
‑-This appeal is at the instance of the .defendant No. 1, the Province of East Pakistan, and is directed against the judgment and decree of the Subordinate Judge, Additional Court, Khulna, passed on the 13th June 1961, in Title Suit No. 141 of 1959/13 of 1961. The plaintiff Nakuldas Mridha and another have obtained a Rule being No. 97 (f) of 1968, from a Division Bench of this Court consisting of Baquer and Moudud, JJ. on the 26th January 1968, calling upon the defendant‑appellant to show cause as to why it should not be restrained by an order of injunction not to interfere with the possession of the plaintiff‑respondent pending the disposal of the appeal and he has also obtained ad interim injunction pending the hearing of the said appeal. The plaintiff has also filed an application for, taking notice of events subsequent to the disposal of the suit. This application was directed by the learned Judges to be kept on record for its consideration at the time of hearing of the appeal. Another application was filed by one Monohar Biswas, Secretary, Bishnupur‑Paraipara‑Chitalwari Fishermen's Co‑operative Society Limited, Koramara, for adding the petitioner as an opposite‑party in the Civil Rule No. 97(f) of 1968, referred to above. We have heard the appeal and the three petitions together as they arise out of the same judgment and facts and circumstances and are being disposed of by this judgment.
It is claimed by the plaintiff in the suit that he being a fisherman obtained settlement of a fishery called Jalkar Koramara from Ramesh Chandra Banerjee, a Zeminder of Gobardanga by an Amalnama executed on 26‑5‑55, for a period of 11 years. The fishery was settled for a period of 11 years from‑4362 B. S. to 1372 B. S. at an annual rental of Rs. 2,625". The said Amalnama was executed on 26‑5‑55. It, therefore, purported to create a settlement for a period of .11 years from 26‑5‑55 to 26‑5‑65.
It is further stated in the plaint that on the acquisition of the rent‑receiving interest of the plaintiff's landlord in 1956, he applied to the Collector for recognition of his tenancy and for acceptance of rent from him for the fishery in question. The Collector held an enquiry as to whether Nakuldas was a rent‑receiver or merely a tenant with direction not to disturb the possession of Nakuldas, pending the holding of the said enquiry. It was reported to him that the plaintiff was not a rent-receiver but in spite of the said report, the Sub‑Divisional Manager of the Government Acquired Estates proceeded to settle the fishery by auction. The plaintiff asserted that such an attempt was Illegal and that he was being threatened with dispossession by one Haji Karam Ali Paik; defendant No. 2, who is alleged to have taken settlement of the fishery. He, thereafter, instituted the present suit for declaration of his title to the property and that the settlement of the fishery with a stranger by the Province of East Pakistan, the 'defendant No. 1, was illegal. There was also a prayer for restraining the lessee, defendant No. 2, permanently from interfering with the plaintiff's possession.
The defendant No. 1 Province of East Pakistan filed a written statement asserting, inter alia, that the plaintiff had no right, title and interest in the fishery as the Amalnama on which he founded his claim was void by reason of the provisions of section 107 of the Transfer of Property Act, and that the fishery in question had been legally acquired by the: Government under the East Bengal State Acquisition and Tenancy Act (hereinafter called the Act).
The defendant No. 2, Haji Karam Ali Paik, in his written- statement asserted his own possession of the fishery. It is also stated that he paid a sum of Rs. 8,260 at an auction held by the defendant No. 1 and obtained the lease.
At the trial only two witnesses were examined on behalf of the plaintiff and the defendants examined none.
Plaintiff examined himself as P. W. 1 and he asserted that he was not a rent‑receiver and reiterated the claim made in the plaint. His statement that he is not a rent‑receiver was not challenged in cross‑examination. The only other witness. P. W. 2 Krishna Das Chakraverty is an ex‑employee of the ex tent‑receiver. He proves the signature of the lessor and testifies to payment of Rs. 2,625 on the date of granting the lease.
The learned Subordinate Judge found that the plaintiff was in possession of the fishery in question. He also reached the conclusion that the fishery in possession of a tenant was not liable to be acquired in accordance with the law in existence prior to the amendment of the State Acquisition and Tenancy Act by East Pakistan Ordinance No. XII of 1960. He held that the said Ordinance was ultra vires and decreed the suit. He declared plaintiff's right in the fishery and confirmed his posses sion therein. He also restrained the defendant No. 2 lessee of the defendant No. 2 permanently by an injunction from interfering with the possession of the plaintiff in the fisheries.
Mr. Siddique Ahmed Chaudhry learned Assistant Govern ment Pleader, appears for the appellant (defendant No. 1) and submits that the learned Judge erred in law in holding that the Ordinance No. XII of 1960 was ultra vires.
In order to appreciate the argument of Mr. Chaudhry it is, necessary to recall events leading to acquisition of khas lands of a rent‑receiver.
On the 2nd April 1956, certain Notifications were issued both under subsection (1) and subsection (2) of section 3 of the Act. Under subsection (1) of section 3 of the Act rent‑receiving interests were acquired. Under subsection (2) of section 3 certain classes of khas lands of the rent‑receiver specified in the Notification itself were acquired subject to section 20 of the Act.
The Provincial Government purporting to act under Notifications issued under subsection (2) of section 3 of the Act claimed to have acquired hats and bazars. This claim was resisted by a number of owners of hats and bazars who were rent‑receivers. The Supreme Court laid down the law in this behalf in the case of Yusuf Ali Chaudhry and others v. The Province of Past Pakistan and another (1). In that case Amiruddin Ahmad, J. delivering the judgment of the Supreme Court observed:
"In the circumstances of the case we are of opinion that the bazar in question does not come under any of the three sub- clauses of clause (b) of subsection (2) of section 20, but that the hats come under sub‑clause (iii) as vacant non‑agricultural lands."
It was therefore held:
"The appellants are, therefore, entitled to retain within the limits permissible under the Act as their khas lands the hats mentioned above.
The result is that this appeal is allowed and a writ will issue as prayed for directing the respondents to refrain from taking possession of the hats so far as they come within the limits of the area permitted by the Act to be retained by the appellants."
It was held in that case that if a hat sits on a vacant non‑agricul tural land on certain days a week and if the total quantity of land of a rent‑receiver does not exceed retainable quantity of land, he would still be entitled to retain the same in spite of Notification dated 2nd April 1956, issued under subsection (2) of section 3 of the Act. This judgment was delivered on the 9th July 1959.
As a result of this judgment the Government found that it could not acquire hats and bazars as such. It, therefore, amended subsection (2) of section 20 of the Act by adding sub section (2a) to section 20 by the East Bengal State Acquisition and Tenancy (Second Amendment) Ordinance, 1960 (East Pakistan Ordinance No. XII of 1960). This Ordinance came into force on the 17th June 1960. The said subsection (2a) of section 2 reads as follows:--
"(2a). Notwithstanding anything contained in any other law for the time being in force or in any instrument or in any judgment or decree or order of any Court, lands of the classes referred to in the clauses (a) and (b) of subsection (2) do not include and shall be deemed never to have included
(i) any land or building in a hat or bazar, or
(ii) any fishery other than a tank constructed solely by process of excavation, or
(iii) any land consisting of forest, or
(iv) any land actually in use for a ferry."
It will, therefore, be seen that by this amendment the change brought about in the law is that any land or building in a hat or bazar or any fishery other than a tank constructed solely by process of excavation are not included in the clauses (a) and (b) of subsection (2) of section 20. Therefore, a rent‑receiver cannot claim exemption from acquisition of a hat or bazar or a fishery. The change was given retrospective operation by the expression "shall be deemed never to have included" occurring (1) P L D 1959 S C (Pak.) 467 in clause (2a) quoted above. The position, therefore, boils down to this that the hat and bazar of a rent‑receiver will be affected by a Notification issued under subsection (2) of section 3 of the Act. The learned Subordinate Judge held that the East Pakistan Ordinance No. XII of 1960 was ultra vires. He was clearly in error of law. He felt that the decision of the Supreme Court could not thus be nullified by a Provincial Ordinance and the law laid down by the Supreme Court was binding on all Courts in Pakistan by reason of Article 2(3) of the Laws (Continuance in Force) Order, 1958. The learned Judge did not appreciate that the decision of the Supreme Court was based on law as it stood on the date of the judgment and it was clearly the duty of the learned trial Court to take notice of the change of law brought about by the amending Ordinance. The same argument was advanced before the Supreme Court in the case of Tofazzal Hussain and others v. The Province of East Pakistan (P L D 1963 S C 251). Their Lordships of the Supreme Court held that the amending Ordinance changed the law and the exemption from acquisition of a hat and bazar could no longer be claimed on the basis of the earlier decision of the Supreme Court in Yusuf Ali Chaudhry's case and observed as follows:--
"It was argued that the amending Ordinance was ultra vires of the Governor because he had no jurisdiction to curtail the jurisdiction of the Supreme Court and an amendment of the Act which nullifies a decision given by the Supreme Court amounts to an interference with the jurisdiction of the Supreme Court. The argument is altogether misconceived. The jurisdiction of this Court is the jurisdiction to decide and the Ordinance does not provide that the Supreme Court shall not have jurisdiction to decide any matter which it was otherwise empowered to decide. A Legislature which has power to make laws regarding rights of persons can make such laws whether during the pendency of a proceeding before a Court or after a decision has been given by the Court and it cannot be said that the Legislature has by exercising such power affected the jurisdiction of the Court. A Statute which changes rights of parties and does not relate to any procedural matter does not affect the jurisdiction of any Court. It affects only rights of parties. The power of the Legislature is not affected by the pendency of a proceeding before a Court or the existence of judgment by a Court."
In this situation Mr. Nizamuddin Haider who has presented his client's case with ability and diligence, submits that he does not contest the proposition of law as urged by the learned Assistant Government Pleader. His contention is that he is a tenant and a non‑retainable khas land of ex‑tenant can be acquired and taken possession of only after taking various steps enumerated in Chapter V of the Act. He pointedly invites our attention to the opening words of section 44 which provides that:--
"Notwithstanding anything contained in any other law for the time being in force or in Chapter II of this Act or in any contract, but subject to the provisions of clauses (a), (b), (c) and (d) of subsection (4) of section 3 and subsection (3) of section 46‑E, on the publication of a notification in the official Gazette under subsection (2) of section 43, declaring that a Compensation Assessment‑roll has been finally published, the following consequences shall ensue, namely:"
He argues that the consequences enumerated in various subsec tions under section 44 would only then ensue. He claims, there fore, that on the acquisition of the rent‑receiving interests of his lessor, he has become a tenant directly under the Provincial Government by reason of the provisions of section 3 (4) (e) of the Act which provides that "all tenants holding lands, in such estates, taluks, tenures, holdings or tenancies directly under the rent‑receiver specified in the notification under subsection (1), shall become tenants directly under the Provincial Government and shall pay rent at the existing rate, in respect of the rent- paying lands so held by them, to the Provincial Government and not to any body else".
We are of opinion that the contention that a tenant ca be dispossessed of his non‑retainable khas land only when the steps enumerated in various sections in Chapter V, have been taken, is correct. As regards rent‑receivers, they were notified acquisition of non‑retainable khas lands under subsection (2) of section 3 of the Act and in pursuance of those notifications such lands could be taken possession of only after observing the requirements of law as laid down by the Special Bench of this Court in the case of Jibendra Kishore Acharya v. Province of East Pakistan (P L D 1957 S C (Pak.) 9). So far as a tenant is concerned the classification of his khas land is determined after the preparation of record-of‑rights and possession thereof is to be taken after completing the steps detailed in Chapter V of the Act. Preparation of the record‑of‑rights involves decision as to whether land is agricultural land, or a fishery or a hat or bazar and then the consequences set out in various clauses under section 44 would ensue. He is, therefore, entitled to claim to be informed that these steps have been taken. In a Court of law, when challenged that those steps have not been taken, the Provincial Government which seeks to take possession of those non‑retainable khas lands would be called upon to prove that the requirements of law have been complied with. This contention of Mr. Haider is, therefore, of substance. Our above conclusion is fortified by a decision of the Supreme Court in the case of Province of East Pakistan and others v. The Secretary, Muktagacha Abbasid Senior Madrasha (P L D 1964 S C 401). In that case it was held:
"It seems to us that after the retrospective amendment made by Ordinance No. XII of 1960 in section 20 by the incorpora tion therein of subsection (2a) which had the effect 6f excluding hats and bazars in the Government from the date of the noti fication in 1956, under subsection (2) of section 3 of the Act. But so far as raiyats, agricultural tenants and other tenants were concerned, the vesting took place, after the preparation of final publication of the compensation assessment‑roll and its notification, by virtue of subsection (3) of section 44."
But, the question is if the plaintiff is a tenant. It is urged by Mr. Nizamuddin Haider that his client respondent No. 1 is a tenant, for, he took settlement of the fishery for eleven years from the ex‑rent‑receiver as would appear from Exh. 4 Amalnama. It is, on the other hand, argued by the learned Assistant Govern ment Pleader that the amalnama being an unregistered instrument cannot operate to create a right in the land. Rankin, C. J. pointed out in the case of Sanjib Chandra Sanyal v. Santosh Kumar Lahiri and others (26 C W N 329), that an agreement of lease intended to operate as a present demise is a lease within the meaning of section 17(1) (d) of the Registration Act and therefore the registration of such a deed of lease was necessary.
Mr. Haider, confronted with the decision in the case of Sanjib Chandra Sanyal, submits that the said document although not registered may be received in evidence for a collateral purpose together with the evidence relating to possession. He urges that amalnama purports to create a lease for eleven years but owing to its not being a registered document it fails to create a tenancy for eleven years; but, he was nevertheless a tenant for one year. In support of this contention, Mr. Haider relies on decision of this Court in the case of Almasullah and others v. Srish Chandra Dam and others (3 D L R 526). His contention is that in the absence of a registered agreement there cannot be a lease for a period extending beyond one year.
It seems to us that this contention of Mr. Haider is of substance. This is clear from the provisions of section 107 of the Transfer of Property Act which provides that a lease of immovable property from year to year or for any term exceed ing one year or reserving a yearly rent can be made only by a registered instrument. It is also true that although there could not be any lease for all the eleven years in the absence of a registered instrument, in the instant case there was still a tenancy for a period of one year. The learned Judge has found that the plaintiff is in possession and the amalnama Exh. 4 shows that the rent was paid for the year 1962 B. S. He was therefore, a tenant for that particular year only as urged by Mr. Haider.
It .is now to be seen if there has been any holding over. In the case of Sm. Lalita Roy and others v. Rafiqullah Khan (18 D L R 107), M. R. Khan, J. observed "An agreement to lease immovable property from year to year or for any term exceeding one year accompanied by delivery of possession in the absence of a registered lease deed, is valid for one year, and if the lessee con tinues in possession with the assent of the lessor, the lessee becomes a tenant by holding over under section 116 of the T. P. Act".
In the case of Mati Lal Karnani v. Darjeeling Municipality (17 C L J 167), a Division Bench of the Calcutta High Court consisting of Sir Asutosh Mookerjee and Beachcroft, JJ. took similar view. In that case Mookerjee, J. observed:
"The position is that there was no valid lease in favour of Abinash Chandra Neogi for a term of 15 years; nor, was there a lease in his favour from year to year, or even a lease reserving a yearly rent, because leases of this description can be validly created under section 107 of the Transfer of Property Act only by a registered instrument. The position of Abinash Chandra Neogi accordingly was not higher than that of a lessee for one year, who held over at the end of the year; his rights, therefore, must be tested by a reference to the provisions of section 116 of the Transfer of Property Act."
Similar view was expressed by the Calcutta High Court in the case of Gobinda Chandra Shaha and another v. Dwarka Nath Patita (19 C W N 489). In that case it was observed as follows:
"As regards the first question, the case for the defendant is that he took the premises from the commencement of the Bengali year 1306, that the rent was fixed at Rs. 275 a year and that the period during which the tenancy was to continue was not settled. It is plain that the defendant became a tenant for one year only, for a rent of Rs. 275; because, under section 107 of the Transfer of Property Act which was in force when the tenancy was constituted, a lease of immov able property from year to year or for any term exceeding one year, or reserving a yearly rent could be made only by a registered instrument. The position consequently, was that the tenancy would, in ordinary course, expire at the end of the year 1306. The tenant, however, continued in occupa tion and the landlords accepted rent from him for 1307; in other words, the tenant held over, the legal effect whereof is deducible from section 116 of the Transfer of Property Act."
In the case of Alauddin Ahmad v. Aziz Ahmad and others (A I R 1934 Pat. 369), a Division Bench of the Patna High Court consisting of Courtney‑Terrell, C. J. and Kulwant Sahay, J. held that a verbal lease for more than one year accompanied by delivery of pos session is valid for the first year.
In order to sustain the claim of the respondent No. 1 that he can be evicted from his. non‑retainable khas land, that is, fishery in this case, only when the appellant, Provincial Govern ment, is able to show that the compensation assessment roll has been published in respect of the said land and other steps enumerated in Chapter V of the Act has been taken, he has him self to show that he was holding over. We have found that the respondent No. 1 was a tenant for one year and that he is in possession.
I would now examine if he is holding over as a tenant. This has to be tested on an examination of the provision of section 116 of the Transfer of Property Act. I now read section 116.
"If a lessee or under‑lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under‑lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106."
There is to be firstly a lease. In this case there was one for the first year and after the expiry of that year it is to be shown that the lessor accepted rent from the tenant. That evidence is wanting in this case. It is not necessary that acceptance of rent is to be proved in all cases. It is enough to show that there was assent to the continuation in possession of the land in question. I have not been able to find, although strenuously urged by Mr. Haider, that there is such an assent in this case. In the absence of the assent to the continuing in possession of the respondent No. 1, we are unable to hold that there is a holding over in this case on the materials placed before the trial Court. I have made it sufficiently clear earlier in the judgment that in order to claim the compliance with the requirements of law under Chapter V of the State Acquisition and Tenancy Act, the plaintiff- respondent No. 1 has to be tenant of the Provincial Government. Unless we are able to find that he is a tenant by holding over, the appellant the Province of East Pakistan is relieved of the obligating of proving that the requirement of law as laid down fn Chapter V of the State Acquisition and Tenancy Act, have been complied with. It is true, P. W. 1, the plaintiff‑respondent No. 1 himself deposed "We paid rent to the Government". But it is not possible for us to accept this statement in the absence of any rent‑receipt. Moreover, he himself stated "After acquisition we applied to the Collector for recognition of our Jalkar right. It was, however, settled with others." If it was settled with others how could the Government accept rent front him. It is not therefore, possible for us to reach a firm conclusion in this behalf on the materials so far placed in this case. We are, therefore, 'of opinion that there is no holding over in this case.
The view expressed by us that the claim for holding over must be supported either by acceptance of rent or by an assent finds ample support in the case of Kaikhushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Wardan and another (I L R 1949 Bom. 660). In that case Mukherjee, J. delivering the judgment of the Court observed:
"On the determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the lessor. If the lessee or a sub‑lessee under him continues in possession even after the determination of the lease, the landlord un doubtedly has the right to eject him forthwith; but if he does not and there is neither assent nor dissent on his part to the continuance of occupation of such person the latter becomes in the language of English Law a tenant on sufferance who has no lawful title to the land but holds it merely through the laches of the landlord. If now the landlord accepts rent from such person or otherwise expresses assent to the continuance of his pos session, a new tenancy comes into existence as is contemplated by section 116, Transfer of Property Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accord ance with provision of section 106 of the Act."
It will, therefore, be seen that a tenant who continues in posses sion has to prove that there was assent to his continuance D or acceptance of rent from him in order to derive the benefit of section 116 of the Transfer of Property Act.
Mr. Haider, however, tenaciously pursues the matter and invites us to consider a subsequent event. He has filed a petition to the effect that the Province of East Pakistan "has recognised the plaintiff as its tenant for all these years up to 1372 B. S. and has started a certificate case against this plaintiff as certificate debtor. At the instance of the Commissioner or Additional Commissioner of Khulna Division being Certificate Case No. 1 of 1965‑66, of the Court of Sub‑Divisional Manager (S. A.) Bagerhat . . . . '
The present suit was instituted on the 1st May 1959. The Judgment of the trial Court was delivered on the 13th June 1961, and the present appeal was preferred to this Court on the 10th November 1961. We are now invited to allow the respondent to prove the new facts which came into existence long after the disposal of the suit by the trial Court.
In support of his contention that he should be granted opportunity of bringing in the subsequent event as an exceptional case, Mr. Haider has placed his reliance on a decision in the case of Ram Ratan Sahu and others v. Bishun Chand and others (11 C W N 732). In that case Mookerjee, J. delivering the judgment of a Division Bench observed as follows:
"It may be taken as a well‑settled principle that, as a general rule, a Court of Appeal in considering the correctness of the judgment of the Court below, will confine itself to the state of the case at the time such judgment was rendered, and will not take notice of any facts which may have arisen sub sequently. But it is equally well‑settled that the Court will, in exceptional cases, depart from this rule, specifically where, by so doing it can shorten litigation and best attain the ends of justice."
In another decision of the Calcutta High Court in the case of Rai Charan Mandal and another v. Biswa Nath Mandal and others (20 C L J 107), it was observed:
"The rule was recognised in. Radha Koer v. Ajodhyas Das (1907) 7 C L J 262 that a suit must be tried in all its stages on the cause of action as it existed at the date of its com mencement."
It was also observed in that case that " . . a Court may take notice of events which have happened since the institution of the suit and afford relief to the parties on the basis of the altered conditions". At the same time a reminder was also recorded "This doctrine is of an exceptional character and is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropri ate, or, that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. The view expressed above, was reiterated also in the case of Nuri Mian v. Ambica Singh (I L R 44 Cal. 47), by a Division Bench of the Calcutta High Court consist ing of Sanderson, C. J. and Mookerjee, J.
In the case of Lachmeshwar Prasad Shukul and others v. Keshwar Lal Chaudhry and others (A I R 1941 F C 5), Gwyer, C. J. observed
" .. I desire to point out that the rule adopted by the Supreme Court of the United States is the same as that which I think commends itself to all three members of this Court. In (1934) 294 U S 600 (Patterson v. State of Alabama) at p. 607, Hughes, C. J. said:
We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.
This view of its powers was rearmed by the Court in a case decided as recently as March last; (1940) 309 U S 551 (Minnesota v. National Tea Company at p. 555)."
The learned Chief Justice has, therefore, observed that it is open to a Court to take into consideration a change of fact as well. It is well‑settled that a change of law has to be taken notice of until the final disposal of a case either by the trial Court or by a Court of appeal. It would, however, appear that in the cases referred to above, it has been emphasised that a departure from the well‑established principle is to be resorted to only in excep tional circumstances with a view to shorten litigation and only when such a course would be in the interest of justice.
At the trial of the present suit, it is urged that the entire attack on the attempt to take possession of the fishery by the Provincial Government was founded on the Ordinance No. XII of 1960.
It was not pleaded in the plaint that the compensation assessment roll was published in respect of the khas land, namely, the fishery in question. It could not also be pleaded that the Government has recognised the plaintiff as a tenant by accepting rent from him, for, according to the assertion made 4n this petition it was accepted even if true, long after the disposal of the suit by the trial Court. To allow this to be brought up for adjudication would mean amendment of the plaint, filing of a written statement, examination of witnesses, as a matter of fact a full trial. We do not think that this new cause of action should be allowed to be raised at this stage. This would not be in the ends of justice. It is open to the plaintiff to institute a separate suit on the new cause of action and claim an appropriate relief. There would not be any question of res judicata in asserting his right on the events subsequent to the disposal of the suit. We are, therefore, not inclined to accept his prayer for taking into consideration the subsequent events.
We have already found that the ground on which the suit was decreed are not sustainable. The appeal is, therefore, liable to be allowed.
For the reasons stated above, the appeal is allowed without any order as to costs. The judgment and decree of the trial Court are set aside and the suit is dismissed.
I would also reject the petition of the plaintiff for taking into consideration the subsequent events. We make no comments whatsoever as to the correctness or otherwise of the facts alleged in the petition.
Since we have found that the judgment and decree of the trial Court cannot be sustained, the rule obtained by the plaintiff has become infructuous and it is therefore discharged without costs on that ground alone.
The petition filed by Monohar Biswas is for being added in the rule just discharged as being infructuous. The question of allowing him to be added to such rule does not arise. This petition is therefore rejected.
We have in this judgment discharged the rule as well as the ad interim injunction granted by a Division Bench of this Court.
Mr. Haider points out that his client has been put into a hopeless position by this order and he may be dispossessed forthwith before any attempt can be made by him to move the Supreme Court against the present judgment and prays, there fore, that the operation of this order should be stayed for a period of three weeks to enable him to file an appropriate petition. We consider that the prayer is reasonable. The operation of the order vacating the ad interim injunctions stayed for a period of three weeks.
Mr. Haider does not press the cross‑objection. It is also dismissed without any order as to costs.
‑---I agree.
A. E. Appeal allowed.
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