Authored By : Charu Chander Ghose, H.G. Pearson

Charu Chander Ghose and H.G. Pearson, JJ.

1. The facts giving rise to these appeals, shortly stated,are as follow: Raja Krishnadas Laha was the owner of certain properties in thedistrict of Jessore. There were settlement proceedings sometime ago and arecord-of-rights was prepared. Thereafter, there were cases under Sections 105and 105A of the Bengal Tenancy Act at the instance of the landlord, the resultof which was that certain lands were held to be mat or rent-paying. The date ofthe decision in the 105 and 105A cases is the 13th August, 1924. Under Section107 of the Bengal Tenancy Act, the decision in the said cases had the force andeffect of a decree of a civil court in a suit between the parties, subject,however, to the provisions of Section 108 and Section 115C of the BengalTenancy Act. Raja Krishnadas Laha died on the 16th November, 1924, but itappears that the fact of his death was not known to the settlement authorities.A proceeding under Section 108 was drawn up by the Settlement Officer forrevising the orders under Sections 105 and 105A of the Bengal Tenancy Act. Thedate of the initiation of this proceeding is the 29th November, 1924. Itappears that the heirs of Raja Krishnadas Laha were not brought on the recordwhen the proceeding was initiated. Now, Section 108 of the Bengal Tenancy Actruns as follows:-

Any revenue officer especially empowered by the "LocalGovernment in this behalf, may, on application "or of his own motion,within twelve months from the "making of any order or decision underSection 105, "Section 105A, Section 106 or Section 107, revise the"same, whether it was made by himself or by any "other revenue officer,but not so as to affect any order "passed or decree made under Section115C. Provided "that no such order or decision shall be so revised if"an appeal from it has been filed under Section 115C "or untilreasonable notice has been given to the "parties concerned to appear andbe heard in the "matter.

2. For certain reasons, recorded in his order, dated the 8thJanuary, 1925, Mr. Fawcus, the Settlement Officer, revised the order underSections 105 and 105A and set aside the same. This was done as stated above,without bringing on the record the heirs of Raja Krishnadas Laha. The matterthen came before the Special Judge, on appeal by the heirs of Raja KrishnadasLaha. The Special Judge held, by his order, dated the 29th April, 1926, thatthe Settlement Officers order, dated the 8th January, 1925, was entirely ultravires, as it was passed without notice to the parties referred to in Section108 of the Bengal Tenancy Act. The Settlement Officer, thereupon, remanded thecase to the lower court for re-hearing after due notice to the partiesinterested. The matter then came before the Assistant Settlement Officer on the28th August, 1926. The heirs of Raja Krishnadas Laha had not even then beenbrought on the record in place of the deceased and the Assistant SettlementOfficer held that the time mentioned in Section 108 having long elapsed and nosteps having been taken to bring the heirs of the deceased on the record, theproceeding under Section 108 must fail and that the original order or ordersunder Sections 105 and 105A of the Bengal Tenancy Act must stand. There was afurther appeal to the Special Judge of Jessore and that officer has now heldthat the proceeding under Section 108 of the Bengal Tenancy Act having beenstarted on the initiative of the Settlement Officer, it is sufficient if suchproceeding has been started within a period of twelve months from the date ofthe order or orders under Sections 105 and 105A of the Bengal Tenancy Act. TheSpecial Judge observed as follows:-

It is nowhere laid down that a case under Section 108,Bengal Tenancy Act, is to be treated as a suit. I, therefore, think that it isenough, for the purpose of Section 108 of the Bengal Tenancy Act, if theproceedings for the revision of the decision are started (either on theapplication of the party or on the motion of the Settlement Officer himself)within 12 months from the date of the decision. The question of bringingparties on record hardly arises. All that is required by the section is that areasonable notice is to be given to the parties and for that there is no law oflimitation. In the present case, whichever date may be taken as the date of theinception of the proceedings under Section 108 of the Bengal Tenancy Act,whether it was 29th November, 1924, when the Assistant Settlement Officerdecided to send up the case to the Settlement Officer or the date of thedecision of the Settlement Officer himself, it was within 12 months from thedate of the decision under Sections 105 and 105A of the Bengal Tenancy Act.Cases under Section 108 of the Bengal Tenancy Act are not, in my opinion, suitsat any stage.

3. On behalf of the Appellants, who are the heirs of lateRaja Krishnadas Laha (and who it may be noted have not yet been substituted onthe record of the original case) it has been contended by Mr. Basu that, incircumstances such as these, although the Settlement Officer may initiate aproceeding under Section 108 of the Bengal Tenancy Act without bringing on therecord the heirs of a deceased party, he must bring on the record such heirswithin the period mentioned in the section itself. In other words, it iscontended that where the Settlement Officer is unaware of the fact of the deathof a party interested, he may no doubt start the proceeding under Section 108without bringing on the record at the moment the heirs of the deceased party,but he must, in order to make the proceeding effective against the partiesinterested, bring on the record the heirs of the deceased party within 12months from the date of the original order under Sections 105 and 105A. In thiscase, this not having been done, Mr. Basu contends that the entire proceedingsunder Section 108 are, having regard to the events which have happened,entirely invalid and that the original order or orders under Sections 105 and105A of the Bengal Tenancy Act cannot be questioned and that they should retainthe force and effect of a decree of a civil court in a suit between theparties.

4. We are of opinion that, on the facts appearing on therecord, Mr. Basus contention is sound and must be given effect to. Theproceedings must be instituted within 12 months, as required by Section 108,but that means valid proceedings must be instituted within that period. Now, itis elementary that proceedings against a dead man are not valid. It follows,therefore, that, in this case, at no point of time within the said period of 12months, were any valid proceedings instituted under Section 108.

5. We are not inclined to hold that there is no appeal inthis case, as has been contended by the Respondents. But be that as it may, itis not necessary to pursue the matter, because this is clearly a case, where,in the exercise of our powers of superintendence under Section 107 of theGovernment of India Act, we can set aside the order of the Special Judge datedthe 4th August, 1928, and restore the order of the Settlement Officer, datedthe 28th August, 1926, and we, accordingly, do so. The result is that theseappeals are allowed with costs.

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Gokulchandra Laha vs.Nistarini Ghosh (11.12.1930 - CALHC)