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PETITIONER: SUBODH GOPAL BOSE

       Vs.

RESPONDENT: AJIT KUMAR HALDAR AND OTHERS

DATE OF JUDGMENT: 07/05/1963

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) SHAH, J.C. AYYANGAR, N. RAJAGOPALA

CITATION:  1967 AIR  498            1964 SCR  (3) 590

ACT:     Revenue Sale-Suit for recovery of poossession on  annul- ment of encumbrance-Excecution of decree during the pendency of  appeal  but before amendment of law-Abatement  of  suit- Bengal  Land  Revenue Sales Act, 1859 (XI of 1859),  s.  37- Bengal Land Revenue Sales (West Bengal Amendment) Act,  1950 (W.B. VII of 1950), ss. 4,7.

HEADNOTE: The appellant purchased a Touzi at a revenue sale help under the Bengal Land Revenue Sales Act, 1859, annullep  591 the encumbrances under s. 37 of the Act and sued the respon- dents  for ejectment and recovery of possession.  The  trial court  decreed the suit and an appeal was taken to the  High Court.  While the appeal was pending the Bengal Land Revenue Sales  (West Bengal Amendment) Act came into force on  March 15,  1950.   The  High Court  found  that  the  respondents’ property was a tenure in existence at the date of the  issue of the notification of sale as mentioned in cl. b (1) of  s. 37  of  the Act as amended by s. 4 of the Amending  Act  and possession  of the disputed property had been  delivered  to the  appellant before commencement of the Amending  Act  but during the pendency of the appeal.  It held that the land in dispute  came  within the protection of ss. 4 and 7  of  the Amending  Act,  allowed the appeal and  directed  the  trial court  to record an order of abatement of the suit under  s. (2) thereof.      It  was contended by the appellant in this  Court  that after the delivery of possession no controversy remained  in existence  and  that  s.  4  of  the  Amending  Act  had  so retrospective operation.      Held  that although s. 4 of the Amending Act was  prima facie prospective, it was retrospective to the extent it was made  so by s. 7 of the Amending Act and applied to  pending litigation.      It is well settled that an appeal is a continuation  of the  original  suit and as the present suit was  pending  in appeal  before the High Court and the decree had not  become final  before the commencement of the Amending Act, it  must be held to have abated under s. 7 (1) (a), and not s. 7  (2)

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of the Amending Act as decided by the High Court, as soon as that  Act  came  into  force and it  was  not  necessary  to consider the effect of the delivery of possession during the pending of the appeal.      The  Amending Act of 1950 intended to grant  relief  to tenure  holders if their tenures had not been wiped  out  by annulment under s. 37 of the old Act before the Amending Act came into force.      Section 4 of the Amending Act read with s. 7 of the Act granted relief even in respect of revenue sales held  before its commencement.      Section 7 contemplated three kinds of cases, namely,(i)  a pending suit or proceeding for ejectment; (2) pending 592 appeal or application for review or application for revision arising  out of the first category made by  an  unsuccessful plaintiff  and  (3)  a  final  decree  or  order  made   for ejectment.   A decree or order against which an  appeal  had been  filed and was pending on the date of the  commencement of  the  Amending Act, if by the unsuccessful  plaintiff  or applicant would be covered by s. 7 (1) (b), whereas a decree or order for ejectment which became final because either  no appeal  was preferred against it, or if there had been  one, it was finally decided, would be within the purview of s.  7 (2).  If such a final decree for ejectment had been executed ’by  delivery of possession before the commencement  of  the Amending Act, the Legislature did not intend to reopen  such closed  transactions.   But except those, in all  the  above categories, If the suit, appeal or proceeding could not have been validly instituted, preferred or made, in terms of  the Amending  Act,  all  those  pending  suits  or  appeals   or applications would abate according to s. 7 (1) (a) and  (b); and the decrees would become void under s. 7 (2).

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 250 of 1961.      Appeal  from  the judgment and decree  dated  June  16, 1958,  of  the Calcutta High Court in Appeal  from  Original Decree No. 144 of 1948.      B.Sen,  S.  N. Mukherjee and R. R.  Biswas  for  the appellant.      N.C, Chatterjee and P. K. Ghosh for the respondents.      1963.   May 7. The judgment of the Court was  delivered by      SINHA C.J. -The main question for determination in this appeal,  on  a  certificate granted by  the  High  Court  of Calcutta, is the scope and effect of ss. 4 & 7 of the Bengal Land Revenue Sales (West Bengal Amendment) Act (West  Bengal Act  VII of 1950)-which hereinafter will be referred  to  as the Amending Act-which came into force on March 15, 1950.  593      The suit out of which this appeal arises was instituted as  long ago as December 6, 1945, and has had rather a  long and  chequered career.  The plaintiff, who is the  appellant in  this  Court, instituted the suit for  ejectment  of  the defendants from the disputed property on the ground that  he had annulled the defendants’ interests, whatever they  were, under  s. 37 of the Bengal Land Revenue Sales  Act  (Central Act  XI  of  1859), by virtue of his  auction  purchase,  on January 6, 1936, of the entire revenue paying estate,  Touzi No.  6 of the 24 Parganas collectorate.  After  the  auction purchase   aforesaid,  he  obtained  possession   from   the Collector  in May-June, 1936, and there after  annulled  and

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avoided  all intermediary interests except  those  protected under s. 37 of Act XI of 1859, by appropriate notices, in or about  June, 1936 The land in dispute was described  in  the plaint  as Mal land of the said Touzi and other Touzies  and the plaintiff asked for Khas possession to the extent of his 1/6th  share,  jointly with the defendants.   The  suit  was contested  by the first defendant-respondent on a number  of grounds,  of  which  it is necessary  to  mention  only  the contention of fact, that the suit lands were not Mal  lands, as alleged by the plaintiff, and had never been assessed  to revenue,  nor were they included in the Mal assets of  Touzi No. 6. It was also claimed by the defendants that the  lands in  dispute were Brabmottar Lakheraj lands which were  never within  the regularly assessed estate, Touzi No.  6.  Hence, the main issue, on question of fact, between the parties was :  "Is the land in dispute Mal land of Touzi No. 6 or is  it Lakheraj?" On this question, the learned Subordinate  judge, by  his  judgment and decree dated April 20, 1948,  held  in favour of the plaintiff and decreed the suit for possession, with  mesne profits, to be ascertained later.   The  learned Subordinate judge held that the land in suit was Mal land of the Touzi No. 6 and other Touzies, and’ that the defendants’ interest was not protected from annulment under s. 37 of the Act 594 of 1859.  The first defendant appealed to the High Court  in July,  1948 ; and the appeal was pending when  the  Amending Act  was  enacted.  When the appeal was put up  for  hearing before a Division Bench on March 8, 1954, the learned judges thought  it necessary to call for a finding on the  question whether  ,possession  had  already  been  delivered  to  the successful plaintiff in execution of the decree of the Trial Court,  before  the  Amending Act  came  into  force.   This enquiry  was instituted in view of the sworn petition  filed on behalf of the plaintiff at the hearing in the High  Court that he had already obtained possession in execution of  the decree  on March 29, 1949, and that, therefore, s. 7 of  the Amending Act did not render the appeal void.  The defendant- appellant  in the High Court contested this statement  fact. The  learned  Subordinate judge submitted a finding  to  the High  Court  to the effect that possession of  the  disputed property had been delivered to the decree holder, as alleged by him, on March 29, 1949.      The High Court accepted the finding of the Trial  Court that  possession had been delivered to the decree-holder  in pursuance  of  the  Trial Court’s decree.   The  High  Court further  considered the effect of the proceedings  taken  at the execution stage.  It appears that the plaintiff had made an application for delivery of possession on March 28, 1949, and  the  following  day, on March 29,  1949,  the  judgment debtor,  who  had already preferred his appeal to  the  High Court, fiied a petition to the Court praying for one month’s time to bring a stay order from the High Court and for  stay of process meanwhile.  The learned Subordinate judge  dispo- sed of the petition, in the following terms :               "Judgment-debtor files a petition praying  for               one month’s time to bring a stay order and for               stay  of  process  in  the  meantime.    Heard               learned                595               lawyer.  Re-call and put up in the presence of               both parties  Inform Nazir." The  High  Court very elaborately considered the  effect  of this order with reference to decided cases of different High Courts,  and  came to the conclusion that  the  delivery  of

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possession  which  had been given to the  decree-holder  was without authority and hence a nullity.  The High Court  then considered  the effect of ss. 4 & 7 of the Amending Act  and came  to the conclusion that the land in dispute being  part of  a  permanent tenure, held rent-free (Niskar),  was  pro- tected under the provisions of the sections aforesaid.   The High Court took the view that the decree passed by the Trial Court  had become void under s. 7 (2) of the  Amending  Act, and that s. 7 (1) (b) had no application.  It also took  the view  that s. 7 (1) (a) would apply and on that account  the plaintiff would be entitled to refund of the court fees,  as the  suit had abated.  But even so, the High Court  was  not prepared  to  accept  the position that  the  defendant  was entitled  to the benefit of s. 7 (1) (a) to the effect  that the suit pending at the appellate stage had abated.      In  the result, the High Court allowed the appeal,  set aside  the  judgment  and  decree of  the  Trial  Court  and directed  that Court to record an order of abatement of  the suit and to pass an order for refund of court fees in favour of  the plaintiff.  The High Court directed the  parties  to bear  their  own costs, both in the Trial Court and  in  the High Court.      On  this appeal, it has been pointed out on  behalf  of the appellant, that the suit when instituted was a good  one in  view of the provisions of s. 37 of the Act XI  of  1859, and  that s. 4 of the Amending Act, which amended s.  37  of the  main Act would not govern the present  controversy  for two  reasons,  namely, (1) that delivery of  possession  had already  been  given to the plaintiff in  execution  of  the decree 596 of  the Trial Court in his favour, and that, therefore,  the controversy  had been finally closed in his favour  and  (2) because  s.  4 was not in terms retrospective.  It  is  true that s. 4 begins with the words "For Section 37 of the  said Act,  the following section shall be substituted," and  then follow the terms of the section, as it is now.  Prima facie, therefore, it is prospective in its operation.  But when  we look to the provisions of s. 7, it becomes abundantly clear, as  rightly pointed out by the High Court, that the  section was  retrospective  in so far as it was made  applicable  to pending litigations.  Section 7 is in these terms               "7.  (1) (a) Every suit or proceeding for  the               ejectment  of  any  person from  any  land  in               pursuance  of section 37 or section 52 of  the               said Act, and               (b)   Every  appeal or application for  review               or  revision arising out of such  suitor  pro-               ceeding,  pending at the date of  commencement               of  this Act shall, if the  suit,  proceeding,               appeal  or  application could  not  have  been               validly,  instituted,  preferred or  made  had               this Act been in operation at the date of  the               institution,  the  preferring  or  the  making               thereof, abate.               (2)   Every  decree  passed  or  order   made,               before  the date of commencement of this  Act,               for the ejectment of any person from any  land               in  pursuance of section 37 or section  52  of               the  said  Act shall, if the decree  or  order               could not have been validly passed or made had               this Act been in operation at the date of  the               passing or’ making thereof, be void : Provided               that nothing in this section shall affect  any               decree  or  order  in  execution  whereof  the

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             possession of the land in respect of which the               decree  or  order  was  passed  or  made,  has               already been delivered                597               before  the date of commencement of this  Act.               (3)  Whenever any suit, proceeding  appeal  or               application  abates under sub-section  (1)  or               any  decree or order becomes void  under  sub-               section  (2), all fees paid under  the  Court-               fees  Act,  1870,  shall be  refunded  to  the               parties  by  whom the same  were  respectively               paid."      It  is common ground that the present suit is  one  for ejectment  in pursuance of s. 37 of Act XI of 1859.   Hence, s.  7  (1)  (a) comes into  operation.   As  will  presently appear,  s. 7 (1) (b) would not apply to the appeal  pending in the High Court.  There cannot be the least doubt that the suit  was  pending  in the High Court,  on  appeal,  at  the commencement of the Amending Act, it being well-settled that an  appeal  is a continuation of the  original  suit.   That being  go, the question is whether the suit could have  been validly  instituted, had the Amending Act been in  operation at the date of the institution of the suit.  That brings  in the  provisions  of s. 4. The relevant  provisions  of  that section are as follows:               "4.  For  section  37 of  the  said  Act,  the               following section shall be substituted, namely               :-               "37. (1) The purchaser of an entire estate  in               the  permanently  settled  districts  of  West               Bengal sold under this Act for the recovery of               arrears  due  on account of  the  same,  shall               acquire the estate free from all  encumbrances               which may have been imposed after the time  of               settlement and shall be entitled to avoid  and               annul  all tenures, holdings and  leases  with               the following exceptions :-               (a)   tenures  and  holdings which  have  been               held from the time of the permanent settlement               either  free  of rent or at a  fixed  rent  or               fixed rate of rent, and               598               (b)   (i) tenures and holdings not included in               exception (a) above made, and               (ii)other leases of land whether or not. for               purposes  .  connected  with  agriculture   or               horticulture,               existing   at  the  date  of  issue   of   the               notification   sale of the estate  under  this               Act:                    x       x      x            x               (2)   For the purposes of this section :-               (a)   (1)   ’tenure’  includes  a  tenure   as               defined in the Bengal Tenancy Act, 1885,                     x           x           x      By virtue of s. 37(1), is amended, the plaintiff as the purchaser  of  the  entire estate, Touzi  No.  6,  sold  for recovery  of arrears on account of that Touzi, had  acquired the  estate free from all encumbrances and was  entitled  to avoid  and annul, all tenures except those -detailed in  (a) and (b) of that section.  Section 37 (1) (a) would not  come into operation in this case because the finding is that  the defendants had failed to prove the existence of tenure since the time of the Permanent Settlement.  But Cl. (b) (i) would apply  if  it was a tenure in existence at the date  of  the

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issue  of the notification for the sale of the estate.   The defendant’s  property was a tenure so in existence,  on  the finding  by  the  High Court that the  tenure  had  been  in existence from before 1910.      On the facts so found, what is the legal position?  The Amending Act of 1950 was intended to grant relief to  tenure holders under proprietors whose estates had been sold  under the Act of 1869, if those tenures had not been wiped out  as a result of annulment under s. 37 of the old Act, and those  599 annulments had become accomplished facts before the Amending Act  came  into force on March 15, 1950.  Section  4  grants relief  to tenure-holders even in respect of  revenue  sales held before that date, if the provisions of s. 7 which  give retrospective  operation  as aforesaid  to  the  substantive provisions  of the Amending Act, which had  extensively  cut down  the rigours of the old s. 37 are attracted, Section  7 contemplates  three kinds, of cases, namely, (1)  a  pending suit  or  proceeding  for the ejectment  of  any  person  in respect of his tenure or lease-hold, irrespective of whether or not the lease was for purposes connected with agriculture or  horticulture;  (2)  pending appeal  or  application  for review or application for revision arising out of (1) above, this  appeal  or application being one  by  an  unsuccessful plaintiff and not by an unsuccessful defendant, because  the abatement contemplated by the section intended to close  the door against an attack on pre-existing title and not against defence  of such a title ; and (3) a final decree  or  order made  for  ejectment.  A decree or order  against  which  an appeal  has been filed and has been pending on the  date  of the  commencement of the Act, if it is by  the  unsuccessful plaintiff  or  applicant, would be covered  by  s.  7(1)(b); whereas  a  decree or order for ejectment which  has  become final because either no appeal was preferred against it,  or if there had been one, it bag been finally decided, would be within  the purview of s. 7(2).  If such a final decree  for ejectment has been executed by delivery of possession of the land  in question, before the commencement of  the  Amending Act,  the legislature did not intend to reopen  such  closed transactions.   But except these, in all the categories  (1) to  (3) above, if the suit, appeal, or proceeding could  not have been validly instituted, preferred or made, in terms of the  Amending  Act, all those pending suits  or  appeals  or applications  would abate according to s. 7 (1)(a) and  (b); and the decrees would become void according to s. 7(2). 600      Under which category would the suit in the instant case come?   It  is  well-settled  that a  pending  appeal  is  a continuation  of the suit out of which it arises.  In  other words,  the suit is pending on appeal.  Hence,  the  present suit,  which was pending in the High Court on the  date  the Amending  Act came into force, will come within the  purview of  s. 7(1)(a).  It will not come under the second  category because  it is not on appeal by an  unsuccessful  plaintiff, nor  will  it  come under category (3)  above,  because  the decree passed against the defendant had not become final  in the sense already indicated.  Hence, in partial disagreement with the High Court, we  hold  that the suit pending in  the High Court on  appeal  had abated on March 15,  1950,  under s.7(1)(a)  as soon as the Amending Act came into force.   ID this view of the matter, it is not necessary to consider the effect  of the delivery. of possession, given as  aforesaid, during the pendency of the appeal in the High Court.      In  the  result,  the appeal fails  and  is  dismissed, though  not  for the same reasons as prevailed in  the  High

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Court.   In  view of the fact that the suit  has  failed  on account of the coming into force of the Amending Act  during the  pendency of the litigation, there will be no orders  as to costs in this Court also.                                          Appeal dismissed.  601