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Civil Appeal No. 158 of 1958, decided on 4th January 1962.

S. 3 (6) and Sch. I, Art. 7‑Demand must be payable to Collector by person holding "any interest in land"‑Possession of Government property by trespasser not "interest in land" recognised by law‑Government not entitled to start certificate case against trespasser for realisation of compensation for use and occupation.

Md. Jane Alam Assistant Government Pleader for Appellant.

Nurul Amin for Respondent.

On the 20th December 1952, the plaintiff took a lease of fishery from the Government in respect of certain properties for a period of three years commencing from the 1st April 1952, at a rental of Rs. 3,000 per year. It appears from the cases of the parties that by the river Dhanu there are certain beels. In respect of Maklain beel, Nandail patua beel and Goldwar beel, the Collector of Mymensingh started a certificate proceeding against the plaintiff for realisation of Rs. 12,000. In the present suit, the plaintiff has contended that the said certificate proceeding started by the Collector is without jurisdiction inas much as the aforesaid beels are covered by his lease vide Exh. D, dated 20th December 1952. The Government, on the other hand, has challenged the plaintiff's statement alleging inter alia that the aforesaid three beels were not leased out to the plaintiff vide Exh. D but the plaintiff trespassed into these beels and as such the plaintiff is liable to the Government for which the aforesaid Certificate Case has been started.

2. The learned Subordinate Judge, 3rd Court, Mymensingh, who tried the suit decreed the suit holding that the Certificate Case No. 1046 K‑ M. of 1955‑56 started against the plaintiff is null and void as there is no provision in the Public Demands Recovery Act to start a certificate proceeding against a trespasser for realisation of compensation for use and occupation of land. Hence the present appeal at the instance o the Government.

3. Mr. Jane Alan, the learned Assistant Government Pleader appearing for the appellant has contended that in view of the provision of section 3 (6) and clause (7) of Schedule I of the Public Demands Recovery Act, the Government is entitled to start a certificate case against a trespasser for realisation of compensation for use and occupation of land etc. We have gone through these provisions relied on by the learned Advocate for the appellant but we do not find any substance in this connection. Subsection (6) of section 3 of the Act defines public demand. It runs as follows:

" Public Demand' means any arrear or money mentioned or referred to in Schedule I, and includes any interest which may, by law, be chargeable thereon up to the date on which a certificate is signed under Part II."

Clause (7) of Schedule I of the Act provides as follows:

"Any demand payable to the Collector by a person holding any interest in land, pasturage, forest rights, fisheries or the like, whether such interest is or is not transferable, when such demand is a condition of the use and enjoyment of such land, pasturage, forest‑rights, fisheries or other thing."

From the aforesaid provision it appears that demand must be payable to the Collector by a person holding any interest in the land, etc. In the present case the plaintiff as alleged by the Government is nothing but a trespasser and as such it cannot be held that his possession as a trespasser is an interest in the land recognised by law. Mr. Jane Alam contends that possessory right is also a right in land. In our opinion, possessory right may be a right in certain circumstances but a trespasser's posses sion is not such a right as contemplated under clause (7) of Schedule I to the Act, as will appear from the other provisions in this clause. It has been provided that such a demand must be a condition for the use and occupation hereby qualifying the words "any demand" payable to the Collector. So the demand A which can be made by the Collector must be in pursuance to a contract enforceable in law and as such the Government's right to realize compensation for use and occupation against a trespasser does not come under clause (7) of Schedule I of the Ac nor is it a public demand as defined in subsection (6) of section 3 of the Act.

The appeal is accordingly dismissed with costs and the judgment and decree of the trial Court are affirmed.

----I agree.

K. B. A.

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