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Appeal from Appellate Decree No. 339 of 1959, decided on 18th August 1961.

S. 19 (I) (c) No existing debt‑Board not competent to entertain application Award of Debt Settlement Board not restoring possession of land ‑ Suit for possession of such land‑Not maintainable.

F. Karim for Appellants.

S. F. Ahsan for Respondents Nos. 1 & 6.

This appeal at the instance of the principal defendants is directed against the decision of the Subordinate Judge, First Court, Dacca, arming that of the Munsif, First Court, Dacca, in a suit for recovery of possession of the disputed land on the basis of an award passed by Hajrathpur Debt Settlement Board.

2. The case of the plaintiffs in short is this: --‑

Abdus Sobhan, Abdul Hamed and Abdul Fajel borrowed Rs. 250 from Adam Howladar, predecessor of the principal defen dants, on mortgage of the disputed land. Two blank stamp papers signed by the mortgagors were made over to Adam Howladar for writing the mortgage documents subsequently. It was stipulated that the mortgage would be satisfied by enjoyment of the usufructs of the mortgaged land. Abdus Sobhan and Abdul Hamed died leaving some heirs. By an amicable partition, the plaintiffs got the suit land in their share. They filed two applications in the Hajrathpur Debt Settlement Board for the settlement of their debt. The Board passed an award to the effect that the debt was satisfied. After award, plaintiffs demanded possession of the land but defendants refused to give up possession. Hence, the suit.

3. The case of the contesting defendants is shortly this: ---

Abdus Sobhan, Abdul Hamed and Abdul Fajel borrowed Rs. 300 from Adam Howladar in 1336 B. S. Subsequently, they took the additional amount of Rs. 250 from Adam Howladar on 9th Chaitra, 1342 B. S., and sold the suit land to him. Two kabalas were executed by Abdus Sobhan, Abdul Hamed and Abdul Fajel. But these were not registered to avoid payments of landlords' fee. Adam Howladar possessed the land on the basis of his purchase and after him principal defendants have been in possession of the suit land. Hajratb pur Debt Settlement Board also held that there was no existence of the debt and that there was sale of the case land to Adam Howladar.

4. The trial Court held that as the Debt Settlement Board in question was not empowered under section 7 of the Bengal Agricultural Debtors Act (Bengal Act VII of 1936) herein after called the Act, to exercise powers regarding restoration of possession under clause (c) of subsection (1) of section 19 of the Act, the Board did not pass any order regarding restora tion of possession, but that the suit for restoration of possession was maintainable as section 19‑A of the Act did not debar the Civil Court from giving possession. It was further observed by the trial Court that the remark sunna rupe nishpatty made in the award, meant that the debt due from the plaintiffs to the defendants was nil. The suit was accordingly decreed by the trial Court.

5. On appeal, the learned Subordinate Judge armed the decision of the trial Court. It was contended before the learned Subordinate Judge, as would appear from his judgment, that the Board bad no jurisdiction to entertain the applications for the settlement of debts, as the existence of that debt was denied by the plaintiffs, and as the applications before the Debt Settlement Board were not with regard to the debt of Rs. 250 mentioned in the plaint. The learned Subordinate Judge held that the Debt Settlement Board had jurisdiction to entertain the applications for settlement of debts; that there was mis‑statement in the plaint regarding the amount of debt and that for this mis‑statement, the plaintiffs would not be dis -entitled to the relief claimed. It wets further observed that the Debt Settlement Board held that the transaction between the parties was a mortgage one and that debt was satisfied by enjoyment of usufructs of land by the mortgages.

6. Mr. F. Karim, the learned Advocate for the appellants, has advanced the following points in support of the appeal: --‑

(1) The Debt Settlement Board had no jurisdiction to entertain the applications for settlement of debts, as the plain tiffs denied about the existence of debt and as the applications were not relating to debt, mentioned in the plaint and, (2) the appellate Court below erred in law in affirming the decision of the trial Court directing restoration of possession although by the award the plaintiffs were not allowed possession of the suit land.

7. Existence of a debt is sine qua non for assumption of jurisdiction by a Debt Settlement Board. The power to decide under section 20 of the Act, whether a liability is ‑a debt or not, includes the power to decide whether or not there is a liability, but where according to both the parties, there is no liability in existence, the Board has nothing to decide. Under section 18 of the Act, a Debt Settlement Board has power to decide, whether a debt exists or not, but for the application of the section, there must be a doubt or dispute about the existence of a debt. These views are supported by the cases of Haji Moharam Ali v. Munsar Ali ((1950) 2 D L R 310), Srikanta Kamar and another v. Atul Krishna Biswas (49 C W N 143) and Rahim Bux Talukdar and another v. Kanaklata Chaudhurani (51 C W N 151) In the case reported (Haji Moharam Ali v. Munsar Ali), it has been held by a Division Bench of this Court that where according to both sides there is no liability in existence on the date of the application to the Board the latter has nothing to decide. In the case (Srikanta Kamar and another v. Atul Krishna Biswas), it has been held that an application before a Debt Settle ment Board, in which the applicant does not admit his liabi lity for any debt whatsoever even though he may have specified a debt, at the same time denying liability for the same, is not maintainable by the Board; and any order passed on such application is void. In the case of Rahim Bux Talukdar and another v. Kanaklata Chaudhurani, it has been laid down that an application wherein the debtor has specified a single debt but denies total liability regarding the same is not a valid application under the Bengal Agricultural Debtors Act and that an order passed on such an application is a nullity.

8. In the present case, the plaintiffs stated in their appli cations to the Debt Settlement Board that the land was mort gaged to Adam Howladar but that the dues were satisfied by enjoyment of usufructs from the land and that there was no existence of any debt. As no debt was admitted, the Debt Settlement Board had no jurisdiction to entertain these applications as it is the case of both the parties that there was no existence of any debt at the time of the applications were filed, the Debt Settlement Board had no jurisdiction to pass any order on the basis of these applications. The award passed by the Debt Settlement Board in the present case is void and without jurisdiction.

9. Mr. S. F. Ahsan, the learned Advocate for the res pondents, has contended in reply that the Debt Settlement Board had jurisdiction to entertain the applications and to pass an award on the basis of the applications. In support of this contention, he has referred to the case of Golapjan Bibi and others v. Sk. Sarif Ahmed and others (52 C W N 103). In that case, his Lordships Harries, C. J. sitting singly held that where a debtor in an application before a Debt Settlement Board mentioned about a debt but denied his liability on the ground that the debt which was contracted on a usufructuary mortgage was satisfied out of the usufruct of the property, his application was maintainable and the Board could make an order on such an application. But this decision apparently runs counter to the Division Bench decision in Srikanta Kumar's case. Moreover, from the report of this case it is not clear whether the creditor also, as in the present case, denied about the existence of the debt. So, this case is of no assist ance to the respondents.

10. In the plaint, it has been stated that the sum of Rs. 250 was taken as a loan on mortgage of the disputed land from Adam Howladar. But in the applications before the Debt Settlement Board Rs. 300 and Rs. 125 have been mentioned as debts. The learned Advocate for the appellants, has contended that in view of the discrepancy it cannot be held that the applications before the Debt Settlement Board were with regard to the debt mentioned in the plaint. For this discrepancy, it cannot be held that the applications would not be maintainable, because it appears that this discrepancy has taken place due to misstatement regarding the amount of debt in the plaint.

11. The Board has not passed any order for restoration of possession of the suit land under clause (c) of subsection (1) of section 19 of the Act. In the award, there is no men tion of any date by which possession of the land was to ‑be restored, as required under clause (h) of subsection (1) of section 25 of the Act. The trial Court held that no order for restoration of possession was passed, because Hajrathpur Debt Settlement Board was not empowered by the Provincial Government to pass an order under clause (c) of subsection (1) of section 19 of the Act. While holding that the Board had no power to order restoration of possession, the learned Munsif held that the Civil Court could give possession because of the award. As the award itself did not allow restoration of possession, 8 the suit for possession is not maintainable and the Courts below erred in law in holding that the plaintiffs were entitled to get possession. It is not a suit for possession on declaration of plaintiffs' right and title to the disputed land.

12. The learned Subordinate Judge did not consider the question of possession at all. He made the following observation in connection with the award :‑

"It may be mentioned here that the awards were passed by the Board on contest on hearing both the plaintiffs and defendants. They found that the transaction between the parties were mortgage and the debt had been wiped out by the enjoyment of the usufruct by the mortgages."

From the words "Sunna rupe nispatty" in column 13 of the Award Exh. 1 there cannot be the inference that the Board found that the transaction between the parties was mortgage and that the debt was wiped out by the enjoyment of usufructs. Columns 3 to 12 of the Award are blank and there is nothing to show under what section of the Act, settlement, if any, was made by the Board.

13. The decision of the lower Appellate Court arming that of the trial Court cannot, therefore, be upheld.

14. In the result, the appeal is allowed with costs. The judgment and decree passed by the learned Subordinate Judge arming those of the trial Court are set aside. The suit is dismissed.

15. Leave under Clause 15 of the Letters Patent, as prayed for by Mr. S. F. Ahsan, the learned Advocate for the respondents, is refused.

S. B./A. H.

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