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Second Appeal No. 992 of 1958, decided on 19th April 1961.
S. 3(17) proviso ----Application.
The proviso to clause (17) of section 3 of the Bengal Tenancy Act. 1885 can apply only when a person holds lands under another in "'adhi ", "barga" or "bhag" on condition of delivering a share of the produce to that person. For the application of this proviso the rent is not to be a fixed rent, but only to be a particular share of the produce which may well vary from year to year.
Abu Nasser Sayedullah v. Abdul Malik alias Mala and another P L D 1960 Dacca 587 distinguished.
Suresh Chandra Dutta and others v. Mohendra Chandra De and others 34 C W N 845 ref.
S. 42‑Suit for declaration of raiyati right‑Plaintiff out of possession‑Suit for bare declara tion without asking for further relief, not maintainable.
Abu Nasser Sayedullah v. Abdul Malik alias Mala and another P L D 1960 Dacca 587 and I L R 22 Mad. 270 distinguished.
S. 80‑Government only proforma defendant‑Want of notice under section 80 does not render suit not maintainable against other defendants.
B. C. Das for Appellants.
Md. Yahya for Respondents.
This appeal at the instance of the plaintiffs, is against the decision of the Subordinate Judge, Khulna, reversing the decision of the Munsif, Satkhira, in a suit for declaration of plaintiffs tenancy right in the disputed land and also for declaration that the settlement record is wrong.
2. The case of the plaintiffs is shortly this: Defendant No. 1 formerly held the disputed land as a bargadar under the plaintiffs. In the District Settlement Record, the land was record ed in his name as a barga raiyat without right of occupancy with effect from 1328 B. S. He surrendered his barga lease in 1332 B.S. and since the surrender, plaintiffs have been in possession of the disputed land. But in the revisional and S. A. Records, the land was recorded in the name of defendant No. 1 as a raiyat. On 6‑8‑1956 defendant No. 1 transferred the land to defendants Nos. 2 and 3. It is stated that these defendants were threatening to dispossess the plaintiffs and so, the suit.
3. Defendant No. 4 only contested the suit. Defence is that defendant No. 1 was not a bargadar, but that he had tenancy right in the land, that the land was recorded in the District Settlement Record, Revisional Record and S. A. Record in his name as a raiyat. It is further alleged that defendant No. 1 did not surrender the holding and that he was all along in possession of the land as raiyat up to the time of sale on 6‑8‑1956 to the other defendants by the kabala, Exh. A, and that since the purchase defendants Nos. 2 to 4 have been in possession of the suit land. It is also alleged that the suit is barred under section 42 of the Specific Relief Act and that it is also not maintainable, as notice under section 80 of the Code of Civil Procedure was not served on pro forma defendant No. 5 (Province of East Pakistan).
4. The learned Munsif held that defendant No. 1 was a bargadar under the plaintiffs, that he surrendered the land in favour of the plaintiffs and that the plaintiffs have been in possession of the disputed land. The suit was accordingly decreed against defendants Nos. 1 to 4. As there was no service of notice under section 80 of the Code of Civil Procedure on the proforma defend ant No. 5, it was held that the suit was not maintainable against proforma defendant No. 5. On appeal, the learned Subordinate Judge held that defendant No. 1 was a tenant, that he did never surrender the holding and that plaintiffs had no possession in the suit land. The learned Subordinate Judge also held that the suit was barred under section 42 of the Specific Relief Act and that it was also not maintainable, as there was no service of notice under section 80 of the Code of Civil Procedure on the proforma defendant No. 5. Accordingly the appeal was allowed and the suit was dismissed. So, this appeal by the plaintiffs.
5. Mr. Bhagirath Chandra Das, the learned Advocate for appellants, contended that the lower Appellate Court erred in law in holding that the defendant No. was a tenant. Mr. Das contended that after the introduction of the proviso to clause (17) of section 3 of the Bengal Tenancy Act by the (Amending Act of 1928) a bargadar cannot be a tenant unless the exceptions mention ed therein are satisfied. Section 3 (17) of the Bengal Tenancy Act with the proviso is as follows: ‑‑
"Tenant" means a person who holds land under another person and is, or but for a special contract would be, liable to pay rent for that land to that person Provided that a person who, under the system generally known as adhi , "haw" or bhag , cultivates the land of another person on condition of delivering a share of the produce to that person; is not a tenant, unless‑
(i) such person has been expressly admitted to be a tenant by his landlord in any document executed by him or executed in his favour and accepted by him, or
(ii) he has been or is held by a Civil Court to be a tenant."
6. Mr. Das has contended that defendant No. 1 cannot be a tenant as there is nothing to show that he has been expressly admitted to be a tenant by the landlord in any document, nor he has been held to be a tenant by any decree of a Civil Court. In support of this contention, reference has been made to the case of Abu Naseer Sayedullah v. Abdul Malik alias Mala and another (P L D 1960 Dacca 587). Rahman J., as he then was, made the following observation in that case: -----
"Before the introduction 'bf this proviso there is no doubt that even a bargadar could be a tenant under the Bengal Tenancy Act but, after the introduction of this proviso, this is not possible unless the exceptions therein mentioned are satisfied."
7. Mr. Yahya, the learned Advocate for respondents has contended that this proviso is not retrospective in effect and, therefore, whatever status the tenant had prior to the amend ment in 1928 continued. In support of this contention, reference has been made to the case of Suresh Chandra Dutta and others v. Mohendra Chandra De and others (34 C W N 845). That was a suit instituted in the Court of Small Causes on the 15th April 1929 for price of a certain share of produce from defendants in respect of the years 1926 to 1928 on allegation that the defendants were labourers. Defence was that they were raiyats in respect of the suit land and so the suit was not maintainable in the Court of Small Causes. As defen dants were recorded as raiyats in the Settlement Record finally published before the Amending Act of 1928, it was held that they had raiyat tight under the old Bengal Tenancy Act, Mr. Yahya has contended that as in the present case defendant No. 1 has been recorded as a raiyat in the District Settle ment Record Exh. C which was finally published in 1925, it is to be held that defendant No. 1 was a raiyat with regard to the suit land. In the case reported in P L D 1960 Dacca 587, this point was discussed and it was held that the claim in the case in 34 C. W. N. 845, being for a period prior to the Amending Act of 1928, the principle laid down in that case would not apply to a case where the claim is for recovery of price barga of crops for any period subsequent to Amending Act of 1928.
8. Mr. Das has contended that in the present case the principle laid down in P L D 1960 Dacca 587 will apply. I cannot accept this contention, as the facts of the present case are distinguishable from the facts of the case reported in P L D 1960 Dacca 587. The proviso to clause (17) of section 3 of the I Bengal Tenancy Act can apply only when a person holds lands under another in "adhi", "barga" or "Mag" on condition of delivering a share of the produce to that person. For the application of this proviso the rent is not to be a fixed rent, but only to be a particular share of the produce which may well vary from year to year. In the present case in the S. A. Record Exh. C (2) defendant No. 1 has been recorded as raiyat and the fixed amount of Rs. 11‑14‑0 has been recorded as the rent for the holding. In the case reported in P L D 1960 Dacca 587 plaintiff claimed that the defendants were his bargadars and claim was made for recovery of price of barga produce for 1364 and 1364 B. S. (sic). But in the present case, it is not the plaintiffs' case that defendants Nos. 2 to 4, were their bargadars. The present case is for declaration of raiyati right of the plaintiffs. For the reasons stated above, the principle laid down in P L D 1960 Dacca 587 will not apply to the facts of the present case. The learned Subordinate Judge held that defendant No. 1 was not bargadar but was a tenant. It cannot be held that there has been any error in law in this finding of the learned Subordinate Judge. The learned Subordinate Judge also held that if defendant No. 1 possessed the land as a bargadar, there would have been no question of surrender and that as the plaintiffs also raised the plea of surrender by a document but did not produce this, these facts also would go to show that the defendant No. 1 was not bargadar. It cannot be said that the view of the learned Subordinate Judge is wrong.
9. Mr. Das has next contended that as no issue was framed in the trial Court as to the bar of the suit under section 42 of the Specific Relief Act, the learned Subordinate Judge erred in law in framing a point for decision on this matter. This contention has no substance, as the objection under section 42 of the Specific Relief Act is there in the written statement. The fact that the learned Subordinate Judge framed a point for decision to the following effect: "Whether the suit is barred under section 42 of the Specific Relief Act " goes to show that the learned lawyers on both sides argued before him on this point. The learned Subordi nate Judge found possession with the defendants. Apparently the suit for the declaration of raiyati right is barred under the proviso to section 42 of the Specific Relief Act. The principle laid down in the cases reported in I. L. R. 22 Mad. 270 and 17 C. L. J. 70 to which Mr. Das referred, will not apply to this case, as the facts of those cases are different from the facts of this case. As the plaintiffs are out of possession, they should have asked for further relief.
10. The learned Subordinate Judge held that the suit is not maintainable, as notice under section 80 of the Code of Civil Procedure was not served on the proforma defendant No. 5. Mr. Das contended that the Province of East Pakistan (proforma defendant No. 5) was not a necessary party to the suit and that although the suit was not maintainable against proforma defendant No. 5, for want of notice under section 80 of the Code of Civil Procedure, the learned Subordinate Judge erred in law in holding that it was not maintainable against other defendants also on these grounds. Mr. Yahya the learned Advocate for the respondents, did not make any reply on this point. So, the contention of Mr. Das that the suit is not maintainable on the ground of non‑service C of notice under section 80 of the Code of Civil Procedure as against proforma defendant No. 5 only is accepted.
11. The findings of the learned Subordinate Judge that defendant No. 1 was a tenant with regard to the suit land and that the suit is barred under section 42 of the Specific Relief Act, are not wrong. There is no ground to interfere with the judgment of the learned Subordinate Judge.
In the result, the appeal is dismissed with costs.
S. B./A. H.
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