1. Suit for ejectment following auction purchase of an estate under Section 37, Bengal Land Revenue Sales Act, 1859 — impact of subsequent amending legislation on pending litigation. (Para 2 )
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1963 Supreme(SC) 159
SUPREME COURT OF INDIA
B.P. SINHA, C.J.I., J.C. SHAH AND N. RAJAGOPALA AYYANGAR JJ.
Subodh Gopal Bose, Appellant
Versus
Ajit Kumar Haldar and others, Respondents.
Civil Appeal No. 250 of 1961, D/- 7-5-1963.
Advocates appeared
Mr. B. Sen, Senior Advocate (M/s. S. N. Mukerji and R. R. Biswas, Advocates with him), for Appellant; Mr. N. C. Chatterjee, Senior Advocate, (Mr. P. K. Ghosh, Advocate, with him), for Respondents.
Advocates:
B.SEN, N.C.CHATTERJI, P.K.GHOSH, R.R.BISWAS, S.N.MUKHERJEE
B.SEN, N.C.CHATTERJI, P.K.GHOSH, R.R.BISWAS, S.N.MUKHERJEE
A pending appeal is a continuation of the original suit. Under the Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950, any suit pending at the Act's commencement abates if it could not have been validly instituted had the Act been in operation at the time of institution.
Headnote:(A) Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950 - Sections 4 and 7 - Bengal Land Revenue Sales Act, 1859 - Section 37 - Ejectment of tenure holder - Retrospective application of Amending Act - Suit pending in appeal - Whether suit abates if it could not have been validly instituted under the amended provisions - A pending appeal is a continuation of the original suit - If a suit for ejectment, pending at the date of commencement of the Act, could not have been validly instituted had the Act been in operation at the date of institution, such suit shall abate under Section 7(1)(a). (Paras 6, 9)
(B) Section 7 of the Amending Act - Retrospective operation - The section is retrospective insofar as it is made applicable to pending litigations, including suits, appeals, and decrees. (Para 5)
(C) Section 37(1)(b) of the amended Act - Protection of tenures - Tenures existing at the date of issue of the notification for sale of the estate are protected from annulment by the purchaser of the estate. (Para 7)
Facts of the case:
The plaintiff purchased a revenue-paying estate and instituted a suit for ejectment of the defendants, claiming to have annulled their interests under the original Act. The trial court decreed the suit in favor of the plaintiff. An appeal was preferred by the defendant and was pending when the Amending Act came into force. The plaintiff contended that possession had already been delivered in execution of the decree before the Act's commencement, and thus the suit should not abate.
Findings of Court:
The court found that the delivery of possession was not a valid execution that would protect the decree from the operation of the Amending Act. Since the defendants' tenure existed prior to the notification for sale, it was protected under the amended Section 37.
Issues: The main issue was whether the suit, pending in the appellate court, abated under Section 7(1)(a) of the Amending Act.
Ratio Decidendi: The court held that a pending appeal is a continuation of the original suit. Therefore, the suit was pending at the commencement of the Amending Act. Since the suit could not have been validly instituted under the amended Section 37 (as the tenure was protected), it abated under Section 7(1)(a) as soon as the Act came into force.
Result: Appeal dismissed.
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2. Whether delivery of possession before the Amending Act closed the controversy and whether Section 4 of the Amending Act operates retrospectively. (Para 5 )
3. The Amending Act retrospectively applies to pending litigations via Section 7, and a pending appeal is a continuation of the original suit. (Para 5 , 6 , 8 , 9 )
4. A suit for ejectment pending on appeal at the commencement of the Amending Act abates if it could not have been validly instituted under the new law. (Para 8 , 9 )
5. Appeal dismissed; suit held to have abated upon the commencement of the Amending Act. (Para 10 )
6. Does the Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950, operate retrospectively?
Yes, while Section 4 appears prospective, Section 7 explicitly makes the Act retrospective by applying its provisions to pending suits, proceedings, appeals, reviews, or revisions, as well as certain decrees passed before its commencement. (Para 5 )
7. Does a pending appeal prevent a suit from abating under Section 7(1)(a) of the Amending Act?
No, because a pending appeal is considered a continuation of the original suit. Therefore, if the original suit could not have been validly instituted had the Act been in operation, the suit pending on appeal abates. (Para 6 , 9 )
8. When does the delivery of possession protect a decree from becoming void under Section 7(2) of the Amending Act?
A decree for ejectment does not become void if possession of the land was already delivered in execution of that decree before the date of the Amending Act's commencement. (Para 8 )
Judgment
SINHA, C.J.I. : 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 and 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.
2. 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 thereafter annulled and 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 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 of 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.
3. 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, Filed a petition to the Court praying for one month s time to bring a stay order from the High Court an
