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  • provisions of sec. 109 of the Bengal Tenancy Act,
  • provisions of the Bengal Tenancy Act.
  • sec. 105 of the Bengal Tenancy Act
  • sec. 109 of the Bengal Tenancy Act
  • sec. 106 of the Bengal Tenancy Act,
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Citation Codes
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citation codes
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  • provisions of sec. 109 of the Bengal Tenancy Act,
  • provisions of the Bengal Tenancy Act.
  • sec. 105 of the Bengal Tenancy Act
  • sec. 109 of the Bengal Tenancy Act
  • sec. 106 of the Bengal Tenancy Act,
Smart Summary

Factual and Procedural Background

The defendant is the darputnidar of mauza Najarpur; his father obtained a darputni settlement on 13 April 1899. The plaintiffs are various tenants in the mauza who claim their lands are lakheraj or, in two instances, held at fixed rents. Proceedings began 27 July 1901 when the defendant’s father applied to have a record-of-rights prepared; the record was published 9 July 1903 with the plaintiffs' lands recorded as male lands. The defendant’s father applied under section 105 of the Bengal Tenancy Act for assessment of fair and equitable rents. Tenants objected, contending some lands were lakheraj and others held at fixed rents. The Settlement Officer held certain lands to be lakheraj and the remainder not to be at fixed rents. The Special Judge agreed with the Settlement Officer. On second appeal this Court held that the Settlement Officer was ultra vires in holding lands to be lakheraj and that the Revenue Court’s duty was limited to settling rents with regard to entries in the record-of-rights; this Court upheld the decision that the other lands were not held at fixed rents. The cases returned to the Settlement Officer who then settled fair rents under the Bengal Tenancy Act. The tenants then brought suits in the Civil Court seeking declarations that the lands were lakheraj or held at fixed rents. The defendant appealed from the Civil Court decisions on the ground that the Civil Court lacked jurisdiction.

Legal Issues Presented

  1. Whether the Civil Court had jurisdiction to hear and determine the tenants' suits challenging the nature of their interests in land, given prior proceedings before the Revenue Court under sections 105–108 of the Bengal Tenancy Act.
  2. Whether the decision of the Revenue Court (Settlement Officer) as to fair and equitable rents is binding and conclusive in Civil Court proceedings under section 109 of the Bengal Tenancy Act.
  3. Whether section 106 of the Bengal Tenancy Act, by providing that a suit "may be instituted" as contemplated by that section, operates to exclude the jurisdiction of the ordinary Civil Courts when tenants do not take proceedings before the Revenue Court.

Arguments of the Parties

Appellant's (Defendant's) Arguments

  • The Civil Court lacked jurisdiction because the question raised had been the subject of application to the Revenue Court (settlement proceedings) and therefore was barred from Civil adjudication by the provisions of the Bengal Tenancy Act (relying on section 109).
  • Because the tenants had not taken the proceedings contemplated by section 106, they were deprived of the right to bring suit in the Civil Court (argument based on the terms of section 106).

Plaintiffs' (Tenants') Position

  • The tenants asserted proprietary or tenancy-related rights: that their lands were lakheraj or, in two instances, held at fixed rents. They proceeded to Civil Court seeking declarations to that effect.

Counsel Submissions Referenced in the Opinion

  • Dr. Ghose for the respondents relied on an unreported decision of this Court and on Jogendra Nath v. Krishna Promoda to argue that section 106 excludes the Civil Court's jurisdiction.
  • The learned Vakil for the respondents cited two cases (not fully named in the opinion) and a judgment of the bench sitting with Fletcher, J., which supported a permissive reading of section 106; Fletcher, J. found these authorities more consistent with the plain words and principle of section 106.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
This Court's decision in the second appeals (prior decision in the same litigation) Established that the Revenue Officer (Settlement Officer) was not competent to go behind the record-of-rights to inquire into the tenants' real nature of interest; the Revenue Court's duty was limited to enquiring into fair rent with regard to the record-of-rights. The Court relied on that decision to conclude that section 109 would not bar the present Civil suits, because the Revenue Court lacked jurisdiction to decide the underlying question of the true nature of the tenants' interests.
Unreported decision of this Court (referred to by Dr. Ghose) Taken to support the proposition that section 106 excludes the jurisdiction of the ordinary Civil Courts. The Court treated this decision as standing alone and not sufficiently authoritative; Fletcher, J. rejected it as not lending strong support for excluding Civil Court jurisdiction.
Jogendra Nath v. Krishna Promoda Invoked as judicial support for the view that section 106 might exclude ordinary Civil Court jurisdiction. The opinion notes that Jogendra Nath has received judicial consideration on more than one occasion but holds that it cannot be considered strong support for the exclusionary view relied upon by Dr. Ghose.

Court's Reasoning and Analysis

The Court analysed the jurisdictional challenge in two principal strands: first, the effect of section 109 (and the prior Revenue proceedings) on the right to litigate in Civil Court; second, the meaning and effect of section 106.

On the first strand, the Court observed that its own earlier decision in the second appeals held the Settlement Officer was ultra vires in going behind the record-of-rights and that the Revenue Court's duty was limited to assessing fair rent with regard to the entries in the record-of-rights. Given that limitation, the Court reasoned that section 109 (which bars Civil Court enquiry into matters already the subject of an application under sections 105–108) could not operate as a bar to the present suits, because the Revenue Court had not been competent to determine the true nature of the tenants' interests.

On the second strand, the Court examined section 106's language that "a suit may be instituted" and concluded that the word "may" is permissive and does not, by itself, exclude the jurisdiction of ordinary Civil Courts. Fletcher, J. stated that exclusion of ordinary jurisdiction by a special tribunal requires clear statutory words indicating such exclusion; no such clear words appear in section 106. The Court rejected the contention (advanced by Dr. Ghose and supported by an unreported decision) that section 106 excludes Civil jurisdiction, calling that construction unsupportable on the plain words of the statute and potentially dangerous as a general proposition. Fletcher, J. preferred the view expressed in other cited decisions and the judgment of his learned brother (who dissented from the exclusionary reading) that section 106 is permissive.

Weighing these conclusions, the Court held there was nothing in the prior Revenue proceedings, nor in the tenants' omission to resort to the Revenue Court, that deprived the tenants of their rights to litigate their claims in the Civil Courts against the darputnidar.

Holding and Implications

APPEALS DISMISSED.

The appeals brought by the defendant fail and are dismissed with costs. The Court affirmed the correctness of the judgment of the lower Appellate Court and agreed with the view that section 109 did not bar the present suits and that section 106 is permissive and does not, by its wording alone, exclude ordinary Civil Court jurisdiction.

The opinion does not discuss broader legal consequences beyond these appellate dispositions; accordingly, the direct effect is the dismissal of the appeals with costs and the affirmation of the lower court's judgment.

(Judgment authored by Fletcher, J.; Teunon, J. concurred: "I agree.")

    Sashi Bhusan Hazra v. Sheikh Eshabar Ali Nazir

    Fletcher, J.:— These appeals are preferred by the Defendant who is the darputnidar of a certain mauza called Najarpur of which his father obtained a darputni settlement on the 13th April 1899. The Plaintiffs in these cases are the various tenants in the mauza. The rights that the Plaintiffs allege they have in the lands are either that their lands are lakheraj or in two cases, I think, that they are held at fixed rents. The only objection that has been raised before us is as to whether the Civil Court had jurisdiction to hear and determine these suits. Proceedings were commenced on the 27th July 1901 by the father of the Defendant to have a record-of-rights prepared and that being done, the record was finally published on the 9th July 1903, and the lands of the Plaintiffs in those suits were all recorded as mal lands. The Defendant's father then applied under sec. 105 of the Bengal Tenancy Act for assessment of fair and equitable rents of the lands. Objections were raised by the tenants, namely, that certain of the lands were lakheraj and the rest of the lands were held at fixed rents. The Settlement Officer held that certain of the lands were lakheraj, but that the other lands were not held at fixed rents, but were liable to have fair rents assessed. The cases were then taken before the Special Judge and the learned Special Judge agreed with the decision of the Settlement Officer. Then second appeals were preferred to this Court and this Court was of opinion that the decision of the Settlement Officer was ultra vires in holding that the lands were lakheraj and that the duly of the Settlement Officer was to settle rents having regard to the entries that appeared in the record-of-rights. This Court upheld the decision in so far as it held that the other lands were not held at fixed rents.* Then the cases went back to the Settlement Officer and he settled, in accordance with the decision of this Court, fair rents under the provisions of the Bengal Tenancy Act. The tenants then went to the Civil Court and they brought, amongst other suits, the suits that are now under appeal in which they asked for a declaration either that the lands were lakheraj or that they were held at fixed rents. It is now argued that the decisions of the Courts below are wrong on the ground that the decision of the Settlement Officer or rather the Revenue Court with reference to what is the fair and equitable rent is binding and conclusive and that the tenants are not entitled to question that decision in any Civil Court. Of course, that is so under the provisions of sec. 109 of the Bengal Tenancy Act, provide that the question in the Civil Court is concerning any matter which is or has already been the subject of an application made under secs. 105 to 108 of the Bengal Tenancy Act. But it is obvious from the decision of this Court in the second appeals to which I have referred that this Court held that the Revenue Officer was not competent to go behind the record-of-rights and enquire what was the real nature of the interest of the tenants. This Court said that the duty of the Revenue Court was limited to the enquiry as to what was the fair rent having regard to the entry that appeared on the record-of-rights. It is quite obvious that, in that view, sec. 109 of the Bengal Tenancy Act would not be a bar to the present suits.

    Then an argument that seems to me to have no substance at all has been advanced and that is that, having regard to the terms of sec. 106 of the Bengal Tenancy Act, as the tenants have taken no proceedings as contemplated by that section, therefore, they are deprived of the right of suit in the Civil Court. But the wording of the section clearly does not bear any such construction. The words are that a suit may be instituted. The word “may” cannot be construed as meaning that the jurisdiction of the Civil Court is excluded. Before the jurisdiction of the ordinary Courts of the country can be excluded by a Special Court, namely, the Revenue Court, there must be the clear words in the statute excluding such jurisdiction. It is quite true that Dr. Ghose has referred to us an unreported decision of this Court in which the view is taken that sec. 106 does exclude the jurisdiction of the ordinary Civil Court. But that decision stands alone or rather, if it has got any support at all, it is supported by decision in Jogendra Nath v. Krishna Promoda(1) that has received judicial consideration on more than one occasion and cannot be considered as lending a strong support. It is sufficient to say that my learned brother who is sitting with me has, in a well-considered judgment, already dissented from this decision which Dr. Ghose relies upon. I do not see how, on the plain words of the sec. 106, it can be said that the section excludes the right of the Civil Court. It is an extremely dangerous proposition to say that whenever a statute gives a person ??? right to go, if he thinks fit, to a special tribunal that necessarily excludes the jurisdiction of the ordinary Courts of the country. I think that it does not so exclude and that the words of sec. 106 are merely permissive, and, in my opinion, the decisions in the two cases that have been cited to us by the learned Vakil for the Respondents are more in accordance with not only principle but the plain words of sec. 106 than that which Dr. Ghose has relied upon. That being so, it is manifest that there is nothing in the proceedings that have taken place before the Revenue Court or the omission of the Plaintiffs in these suits to resort to the Revenue Court that would take away the rights that the Plaintiffs allege they have in the lands as against the durputnidar. It seems to me to be an alarming proposition to put forward that a person because he went to the Civil Court instead of going to the Revenue Court is liable to be deprived of his rights to the property which he may have purchased or inherited from his ancestors. I agree with the decision of my learned brother in the case that has been handed over to us by the learned Vakil for the Respondents, and, I think, that the judgment arrived at by the learned Judge of the lower Appellate Court's correct. The appeals, therefore, fail and must be dismissed with costs.

    Teunon, J.:— I agree.

    Appeals dismissed.

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    Comments

    Sashi Bhusan Hazra v. Sheikh Eshabar Ali Nazir
    (Mar 11, 1915)