Authored By : P.N. Mookerjee, P.K. Sarkar

P.N. Mookerjee, J.

1. A short point of law arises in this appeal but the pointis of some importance and not altogether free from difficulty.

2. On February 21, 1947, the Appellant Lalji Agarwallaobtained a decree for ejectment, arrears of rent and damages against theRespondent Jhingu Goala in T. S. No. 384 of 1945 of the Court of the 2nd Munsifat Alipore. The property in dispute was non-agricultural land and theRespondent was a non-agricultural tenant under the then continuing BengalNon-Agricultural Act, 1940. In the suit the Appellants claim for ejectment wasresisted inter alia under the above Act. The Court, however, did not stay thesuit but on February 21, 1947, it made a conditional decree for ejectment,etc., in these terms:

It is ordered and decreed that the suit be decreed withcosts on contest against the Defendant. The Plaintiff do get arrears of rentclaimed to the extent of Rs. 315 (Rupees three hundred and fifteen only) andRs. 171 (Rupees one hundred and seventy-one only) as damages calculated at therate of Rs. 9 per month from Sravan, 1352 B.S. to Magh, 1353 B.S. and thePlaintiff is entitled to get damage at the same rate till the date ofpossession of the suit land. The Defendant must deposit the decretal dueswithin one month from the date of delivery of judgment; in default, thePlaintiff will get khas possession of the land in suit by evicting theDefendant therefrom and that the sum of Rs. 96-8-8 pies (Rupees ninety-sixannas eight and pies eight) only be paid by the Defendant to the Plaintiff onaccount of the costs of this suit.

3. This decree was eventually put into execution in T. Ex.Case No. 108 of 1948 which was started on July 24, 1948. In the meantime, itappears, the judgment-debtor (who is the Respondent before us) had deposited asum of Rs. 582-8 on March 21, 1947, that is, within one month as stated in thedecree in purported compliance therewith. A question, accordingly, arosewhether, in view of the express terms of the decree, the decree for ejectmentretained its executability after the above deposit. The decree-holder contendedat that stage that the amount, deposited as aforesaid, was insufficient and thelearned Munsif, by his order dated September 9, 1949, eventually found that,although the amount was sufficient on the figures, mentioned in the decree, thedecretal costs had been calculated wrongly therein at Rs. 96-8-0, whereas itought to have been Rs. 98-11-6 pies. As this was obviously a mistake of thecourts office, the learned Munsif allowed the judgment-debtor time till the20th to deposit the small deficit of Rs. 2-3-6 pies and, that deposit havingbeen duly made, he, by his order dated October 29, 1949, accepted thejudgment-debtors deposit as quite in compliance with the terms of the decreeand struck off the execution case upon the view that, by reason of the deposit,the decree for ejectment (and obviously also the other parts of the decree)could not be executed. The decree-holder appealed from this order and thelearned appellate court, by its judgment, dated September 9, 1950, construedthe decree as one passed under the proviso to Section 3 of the BengalNon-Agricultural Tenancy Act, 1940, referred to above, and upon that view(which seems to us to be perfectly correct) he held that, the said Act being nolonger in force, the stay under the proviso had spent itself and, accordingly,the execution would proceed according to law irrespective of the validity orsufficiency of the judgment-debtors deposit. In the result, he allowed theappeal, set aside the learned Munsifs order, dated September 9, 1949, whichmeant also the setting aside of the consequential order, dated October 29,1949. striking off the execution case.

4. In the above context, the execution case was restored tofile on September 26, 1950, and writ of possession was ordered to be issued,fixing November 20. 1950, for return and order. In the meantime however, onOctober 7, 1950, the judgment-debtor filed his objection under Section 47 ofthe Code of Civil Procedure, giving rise to Misc. Case No. 414 of 1950. and,upon his prayer, the execution case was stayed till the disposal of the aboveMisc. Case.

5. In the Misc. case, the judgment-debtors principalobjection was that he was not liable to ejectment in view of the provisions ofthe new West Bengal Non-Agricultural Tenancy Act, 1949, which had meanwhilecome into force on and from about the middle of May, 1949. Protection wasclaimed under Section 7, or, in the alternative, under Section 9 of the Act andalso under Section 56. In view of the express terms of Section 88 there was noquestion that this new Act would apply to the case and the learned Munsif,having held that the applicant judgment-debtor was in possession of thedisputed land as a non-agricultural tenant for more than twelve years, gave himprotection under Section 7. He further held that the judgment-debtor was alsoentitled to protection under Section 56 of the Act, as the decree for ejectmentin the present case was, in his opinion, on account of arrears of rent asrequired by that section.

6. On appeal, the learned Additional District Judge heldagainst the judgment-debtor on the question of protection under Section 7 as hewas unable to agree with the learned Munsif that the requisite possession for12 years had been proved in the case, but he held that the applicantjudgment-debtor was nevertheless entitled to protection in view of theprovisions of Section 9 of the Act as the necessary six months notice (videSub-section (1)(b)(iii)) had not admittedly been given to him. He alsoaffirmed the learned Munsifs view that Section 56 was also a sufficient answerto the decree-holders claim for, ejectment in the present case. From thisappellate decision, the decree-holder has preferred this appeal to this Court.

7. At the hearing, a preliminary objection was raised to themaintainability to this appeal on the ground that, the Appellants estateincluding the disputed land having vested in the State under the EstatesAcquisition Act, 1953, the Appellant had no locus standi to maintain orcontinue this appeal. We do not think, however, that this objection is sound.So far as the disputed land is concerned, the Appellants claim forcompensation will greatly vary in amount according as it is tenanted or khas.If the present appeal succeeds, the Appellant will be entitled to khaspossession of the land though that possession will ultimately enure to theStates benefit and his claim for compensation will be determined on thatfooting. If it fails, the land will, remain the tenant Respondents land underthe Appellant and will be tenanted land so far as the Appellant is concernedand his compensation will be determined accordingly. In this view, we over-rulethe preliminary objection and proceed to decide the appeal on the merits.

8. In view of the appellate courts finding on the questionof the length of the tenant judgment-debtors possession, which must beaccepted in this appeal, no question of protection arises under Section 7 ofthe Act. As to Section 9 of the Act, it is unnecessary to refer to itsprovisions for the tenants protection as, in our opinion, the landlords claimfor ejectment must fail and this appeal must be dismissed in view of theprovisions of Section 56 of the Act, as applying to this case. We do not,therefore, deem it necessary to consider in any great detail the decision of thisCourt in Astaram Bagdi and Ors. v. Sitanath Mandal (1956) 60 C.W.N. 109, reliedupon by the Appellants learned Advocate on this part of the case, although, inthe course of this judgment,-or, in its concluding part, to be precise,-weshall be making some incidental observations in regard thereto.

9. So far as Section 56 is concerned, the position in thepresent case stands thus:

The decree for ejectment has already been construed betweenthe parties as one passed under Section 3 proviso of the old BengalNon-Agricultural Tenancy (Temporary Provisions) Act, 1940, which means that itwas taken to be-and must, so far as the present parties are concerned, beregarded as a decree for ejectment on account of or on the ground of nonpaymentof rent. That decision is binding between the parties and it seems to be quitecorrect also as, under the law, as it then stood (vide Section 3 including theproviso), the suit for ejectment could not have been proceeded with exceptwhere the decree for ejectment was to be made on account of or on the ground ofnonpayment of rent and where, accordingly, the proviso applied and permittedonly conditional decrees like the one, passed in the present case. Right orwrong, that view of the suit is binding between the parties and the Appellantis not, in our opinion, entitled to resile from that position when he isseeking to execute the decree, obtained on that footing. It is beyond disputealso that a suit for ejectment on account on non-payment of rent under theproviso to the old Section 3 would be and would remain a suit for ejectment onaccount of, that is, on the ground of, non-payment of rent under the new Actalso for inter alia purposes of Section 56 thereof. In the above view, we holdthat the suit for ejectment in the instant case would have to be taken as oneon account of non-payment of rent as between the present parties for purposesof Section 56 of the West Bengal Non-Agricultural Tenancy Act, 1949, and, oncethat is done, there is no escape from the position that this appeal must failand the Appellants execution case must stand dismissed, as otherwise we wouldbe permitting ejectment for arrears of rent in violation of Section 56 of theAct.

10. In the above connection our attention was drawn to theBench decision of this Court (per Chakravartti, C.J. and Lahiri, J.) in LaljiAgarwalla Jain v. Mahabir Kairi L.P.A. No. 3 of 1953 (unreported) and it wasargued on behalf of the Appellant that in taking the above view, we would beholding, contrary to the said decision which we are not entitled to do underthe Rules of this Court and we were asked to refer the matter to a Full Bench.We do not think the argument can be accepted. The present case isdistinguishable from the case cited by reason of the previous order of thelower appellate court, dated September 9, 1950, on the earlier occasion whichis on record and is part of it and wherein it was held that the decree, nowunder execution, was passed under the proviso to Section 3 of theNon-Agricultural Tenancy Act of 1940. There was no such material before theLetters Patent Bench for holding that the parties were bound to proceed, as inthis case, upon the footing that the decree for ejectment was on account ofnonpayment of rent. Their Lordships there had to rely only on the ejectmentdecree which, according to them, was not sufficient to show that it was made ina suit for ejectment on account of nonpayment of rent. That distinction rendersunnecessary any reference to the Full Bench in the present case although, in theabsence of it, such reference would have been necessary as, in our view, withall respect to the learned Judges who decided the Letters Patent Appeal, thedecree in that case also should have been construed as having been made in asuit for ejectment on account of arrears of rent as held by Renupada Mukherjee,J. whose judgment in S.M.A. 78 of 1951 was reversed in the Letters PatentAppeal. In view of the mandatory provision for stay of the ejectment suit (videSection 3 of the 1940 Act) if it was- treated as one on other grounds, the suitcould not have proceeded to a hearing and the decision of the court, passing aconditional decree in the form, in which it was passed in that case, as itappears from the recital portion of the Letters Patent judgment, makes itabundantly clear that the court rightly or wrongly treated the suit as one forejectment on account of arrears or non-payment of rent and that was bindingbetween the parties. Indeed, the decree, passed in that case, does not seem tobe explicable on any other hypothesis-and we say this with the utmost respectto the learned Judges who decided the Letters Patent Appeal and, in particular,to the learned Chief Justice who delivered the judgment of the Court on thatoccasion- notwithstanding observations to the contrary contained in thatjudgment. It is important also to note that in the decision part of thatjudgment (which apparently contradicted the earlier recital portion) the timeprovision in the decree was stated to be one merely for the payment of thearrear rent, that is, not necessarily for staying ejectment or avoidingimmediate ejectment as under the proviso to Section 3. We do not know whetherthis incomplete statement of the relevant part of the decree or the abovemanner of referring to the time provision had anything to-do with theobservations of the learned Chief Justice that the Court was not necessarilyacting under the proviso to Section 3 as, in our opinion,-and again we say thiswith the utmost respect to the learned Judges who decided the Letters PatentAppeal,-if the decree was in the form, as set out in the earlier recitalportion of the judgment, it could not have been passed except under thatproviso. It is unnecessary to continue this discussion as, for reasons, alreadymentioned, the case cited is distinguishable from the present. We, accordingly,hold that the decision of the Letters Patent Bench does not preclude us fromgiving protection to the tenant judgment-debtor in the present case-underSection 56 of the Act and the Appellants argument to the contrary must fail.

11. Before concluding we would like to make a fewobservations in regard to the decision in Astaram Bagdis case (Supra). In thefirst place, we deem it necessary to point out that, as we have based our presentdecision on Section 56 alone, that case which was concerned solely with Section9 has strictly no relevance here. The reasons given by their Lordships (DasGupta and Bachawat, JJ.) in the case cited for construing the words"liable to ejectment" in Section 9 as limited to suits do not, in ouropinion, apply to Section 56. The present case is, therefore, clearlydistinguishable. In the second place, it seems to us that Astaram Bagdis case(Supra) did not proceed upon a correct view of the decision, reported inPanchumani Dassi v. Bhuban Mohan Mukherjee (1954) 59 C.W.N. 243 and certainobservations on Section 9 were quoted from this decision and relied upon inAstaram Bagdis case (Supra) entirely separated from the context, and noreference was made to the effect of Section 88 which, as held in Panchumaniscase, changed the entire outlook Indeed, if we may point out with respect, thefirst is not altogether free from difficulty and the question of the true scopeof Section 9 may have to be considered over again and the validity of thegrounds, given in Astaram Bagdis case in support of its decision, may have tobe re-examined. We ought to add, however, that the actual decision in that case(: 60 C.W.N. 109) may well be supported on other grounds.Nothing more need be said on the present occasion.

12. In the above view, we dismiss this appeal though, in thecircumstances, we would not make any order for costs in this Court.

P.K. Sarkar, J.

13. I agree.

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Lalji Agarwalla Jainvs. Jhingu Goala (08.02.1957 -CALHC)