P L D 1960 Dacca 555 (PLP)

On appeal the learned Subordinate Judge disagreed with the learned Munsif and held firstly that the suit was barred under the provisions of the East Bengal State Acquisition and Tenancy Act and secondly that Someraddin had abandoned his tenancy and his heirs never possessed the suit lands and, hence, the interest of Someraddin passed to the defendants by the sale in the rent execution case. Furthermore that the kabala Exh. A effectively transferred a 4 annas 7 gandas share to Tasenuddin and not only 66 acres as claimed by the plaintiff. Hence, the plaintiff had neither title nor possession in the suit lands. What ever interests his vendors had, had been extinguished by the possession of the defendants. Hence, the suit was dismissed with costs. It is against this decision that the plaintiff has now come up on appeal to this Court and the first point that is urged on his behalf is that the learned Subordinate Judge was wrong in taking the view that the suit was barred under section 30 (1) of the East Bengal State Acquisition and Tenancy Act. The said subsection reads as follows :‑

"After an order has been made under section 17 directing the preparation or revision of a record‑of‑rights in respect of any area, no Civil Court shall entertain any suit or application for the alteration of rent or determination of the status of any tenant or the incidents of any holding or tenancy in such area ; and if any such suit or application relating to such area is pending before a Civil Court on the date of such order, it shall not be further proceeded with and shall abate". It is urged that this subsection only bars suits of particular kinds, namely, suits for alteration of rent or determination of the status of any tenant or the incidents of any holding or tenancy and not any and every kind of suit. The present suit does not come under anyone of the above categories and hence, it could not have been barred. My attention in this connection is also drawn to the sections 54 and 56 of the said Act. The said sections read as follows ;‑

Section 54."The Revenue‑officer shall make such alterations in the records‑of‑rights or the Compensation Assessment‑roll as may be necessary to give effect to any direction issued by the Commissioner or other officer under section 49 or an order made by a Special Judge under section 51 or section 53 or under subsection (4) of section 52 or to any final order or decree of a Civil Court or High Court passed in any suit, appeal or proceeding declaring title to and, or possession of any land. Section 56.‑No party to a suit, appeal or proceeding in a Civil Court or High Court in respect .of any land shall, notwith standing anything elsewhere, contained in this Act, be entitled to raise before a Revenue Officer, Revenue Authority, Special Judge or the Commissioner or any other officer under sections 19, 40, 41, 49, 51, 53 or 60 any issue in respect of such land, which is substantially in issue in such suit, appeal or proceeding". Reading these sections together with section 30 it seems clear that notwithstanding section 30, Civil Courts still retain jurisdic tion to declare title or possession of tenants and the Revenue Officer when preparing records of rights or Compensation Assessment‑rolls, under the said Act, cannot ignore the final orders or decrees of Civil Courts in such suits. Indeed, under section 56 no party is even entitled to raise any issue in a proceeding under section 19 of the said Act which is substantially in issue in a suit, appeal or other proceeding had between the same parties in a Civil Court. In the case of Abdul Mannan and others v. Mafizuddin Bepari and others, reported in (P L D 1959 Dacca 151) my learned brother Chowdhury, J. also took the view that the suit or application or appeal contemplated in section 30 relates to a matter other than a suit for the decision of a question of title and possession. The learned Advocate appearing for the respondent, however, contended that I must not look merely to the form in which the reliefs had been framed ; but at the substance of the suit which is in reality a suit for the correction of a record of rights prepared under section 17 of the East Bengal State Acquisition and Tenancy Act and against which an appeal actually filed under sub section (2) of section 19 of the said Act, had been unsuccessfully prosecuted. Hence, according to him, the present suit was a suit for the determination of the status of the tenant and the incidents of the holding. Furthermore, the plaintiff having already had recourse to the procedure provided under the said Act should not now be allowed after being unsuccessful therein to adopt this procedure by way of a suit in a Civil Court. In support of this contention he has relied on a decision of the Calcutta High Court in the case of Bhandi Singh and others v. Ramadhin Roy and another reported in (10 C W N 991) where it was held that where concurrent jurisdiction is conferred to two tribunals, then a litigant, if he has made a choice and availed himself of the procedure provided under a special statute setting up a special tribunal, then he should not again be given an opportunity to litigate the same matter in the ordinary Civil Courts after losing before the Special Tribunal. This view was also' followed by this Court in the case of the Province of East Bengal v. Dewan Abdul Alim, Mutivali reported in (9DLR26). The learned Advocate also sought to argue that since the East Bengal State Acquisition and Tenancy Act repeald the Bengal Tenancy Act and re‑enacted some of its provisions in a modified form, the modifications made must have been made with some intention. Thus, if the present provisions under section 30 of the East Bengal State Acquisition and Tenancy Act are compared with the provisions of sections 111, and 111‑A of the Bengal Tenancy Act, it will be observed that section 111 barred suits or applications of somewhat the same kind, namely, for the alteration of the rent or the determination of the status of any tenant and section 111‑A provided that any person who was dissatisfied with any entry or an omission from a record of rights, may institute suits for a declaration of his right under Chapter VI of the Specific Relief Act. Hence, it is argued that under section 111‑A a suit for a declaration of title under the Specific Relief Act was maintainable by reason of the provisions of the said proviso ; but since that proviso had been omitted in the State Acquisition Act, the intention of the legislature must have been to take away that right of filing a suit under the Specific Relief Act for such a declaration. I am unable, however, to agree with this proposition. It is no doubt true that for the interpretation of a particular statute it is permissible to look at the previous state of the law ; but nevertheless it is an equally well established principle that so far as the ouster of jurisdiction of Civil Courts is concerned, the legislature must do so by express provision made in that behalf. The ouster of such jurisdiction is not to be lightly inferred, as was observed by the Judicial Committee in its opinion in the case of The Secretary of State v. Mask & Co. reported in (44 C W N 709). There is yet another reason for which this argument cannot be accepted, for I find that even under the Bengal Tenancy Act it has been held that the said provisions of section II I only operate as a bar to those specific kinds of suits or applications as have been mentioned therein and not in respect of other kind of suits or applications. Thus, in the case of Maharaj Bahadur Singh v. Binode Behary Choudhury and others reported in (A I R 1936 Cal. 263) the Calcutta High Court held that a suit or proceeding can be stayed under section 111 of the Bengal Tenancy Act only if the suit or application is filed for the determination of the status of any tenant and even in a case where the question of status may have to be gone into, because the defendant has raised, it will not authorise the Court to bar the application or the suit under this section. The same view was taken by the Calcutta High Court in the case of Kshemananda Kumar v. Rashmaya Haldar, reported in (32 C W N 132) where Rankin, C. J. observed that section 111 of the Bengal Tenancy Act does not mean that in any case in which the tenant chooses to raise a question as to status, the landlord is prevented from taking action under the ordinary law in such matter. The principle, therefore, appears to me from all these decisions to be that only the specific kinds of suits mentioned in the statute as being barred can be affected thereby and no other suits. The question then is whether the present suit can come under any one of the categories mentioned in section 30. It is certainly not a suit for the alteration of rent or for the determination of the incidents of any holding. But it is urged that it is a suit for the determination of the status of a tenant. I fail to see how the present can be described to be a suit for the determination of the status of the tenant. There is no dispute that the tenancy is a karsa tenancy. There is no question here as to the nature of the tenancy itself. The question is whether the plaintiff is entitled to claim that right in respect of a particular portion or parcel of land said to have been taken settlement of by him. This is a suit purely for the declaration of his title to the land and not for the determination of any question relating to his status as a tenant. In this view of the matter, I am of the opinion that the learned Subordinate Judge was entirely wrong in holding that the suit was barred by reason of the provisions of the East Bengal State Acquisition and Tenancy Act. The next question that falls to be determined is whether there was any abandonment of the tenancy by Someraddin and whether the right, title and interest of the heirs of Someraddin passed by the auction sale in the rent execution case. It is an admitted fact that the heirs of Someraddin were not made parties either to the rent suit or the execution case because it was said their names were not mutated in the landlords' sherista, Somerad din having abandoned the tenancy. It is significant that nowhere has the defendant ever suggested that the landlords ever re‑entered the tenancy, nor do they claim to have obtained the tenancy from the landlord but they based their right purely upon the auction sale. Evidence has been led on both sides to show that the heirs of Someraddin never lived on the land but that they lived with their father at Gabtala in the district of Khulna. The Court of Appeal below has found this as a fact and this Court is not entitled to go behind this finding of fact in second appeal. But even accepting the fact that the heirs of Someraddin did not reside in the holding in question, does that amount to an abandonment of the tenancy either by Someraddin or by the heirs of Someraddin. In my view, it does not. The abandonment of the tenancy is dealt with under section 87 of the Bengai Tenancy Act and subsection (2) thereof expressly provides that although in the case of voluntary abandonment or residence, the landlord may enter on the holding and let it out to another tenant or take it to cultivation under himself, yet before he does that, he must file a notice in the prescribed form in the Collector's office saying that he has treated the holding as abandoned and is about to enter on it accordingly and the Collector shall cause the notice to be published in the prescribed manner. There is no evidence in the present case that any such notice was ever filed with the Collector or that any such notice was ever published. The learned Advocate, however, contends that this section is not exhaustive and apart from this, there can also be an abandonment. But even accepting that there can be an abandonment apart from the provisions of this section 87 of the Bengal Tenancy Act I am unable to go so far as to say that mere non‑residence is sufficient to warrant the inference of abandonment. The Bengal Tenancy Act has, of course, not given any definition of the word "abandonment". But to my mina the word connotes the idea of a tenant vacating the land with the intention of never returning to it. Mere temporary absence or absence in circumstances which cannot lead to the inference that the tenant had‑departed from the land without caring as to what happens thereto thereafter is not sufficient to warrant the inference of abandonment. Thus, if a tenant leaves the land for a pilgrimage with the intention to return thereto but his intention remains unfulfilled due to some accident for a large number of years, it will not, to my mind, be sufficient to hold that the land has been abandoned by the tenant. It was, therefore, in my view, necessary for the defendant to show some more positive act than mere non‑residence to establish abandonment. It is significant that no attempt was made by the defendants to show that the heirs or their father Someraddin had never paid any, rent for this land to the landlords after their alleged abandonment. Indeed, the rent rolls of the landlords were not even produced before the Court. In these circumstances, I am unable also to agree with the learned Subordinate Judge that the finding of non‑residence of the heirs of Someraddin in the village Charbaleshwar amounted to an abandonment of the tenancy. Hence, the heirs of Someraddin were, in my view, necessary parties to the rent suit instituted by the landlord. In the absence of the said heirs the decree obtained by the landlord in that suit, was not a rent decree but merely a money decree. By the execution of that decree the tenancy or the holding did not pass to the auction purchaser. The defen dant, therefore, had no right to the share of Someraddin in the holding. Next with regard to the area transferred to Tasenuddin under Exh. A. Here, the learned Subordinate has taken the view that no matter what else may have been said in the document Exh. A, the fact that the share purported to be transferred had been mentioned therein was sufficient to transfer that share and the share so transferred was not restricted in any way by the express description of the area, boundaries or quantum of land in other parts of the document. The learned Advocate appearing in support of this appeal; however, contends that the learned Subordinate Judge has overlooked the fact that in more than one place in this document it was specifically mentioned that the land purported to be transferred was one bigha equivalent to .66 acres. Thus, once in the margin and then again in the schedule appended to the document and again in the description with reference to the boundaries given in the document, it is specifically mentioned that one bigha of 5 and 3/4 knals or .66 acres was the area being transferred. There is no specific rule, so far as I am aware, of the nature referred to by the learned Subordinate Judge. The whole purpose of the interpretation of a document is to ascertain the true intent and purpose of the parties creating the document. For this purpose it is well established that' the entire document must be taken into account. It is not possible to give any particular importance or weight to any particular portion or words in a document, unless and until it appears from the context of the words used in the other parts of the document as well that that particular word or that particular phrase was intended to be of such vital importance. Thus, for instance, if I am merely to go by the share mentioned in the document as the share sought to be transferred without taking the other parts of the document into account, I may well be forcing an intention upon the executant of the document which he did not possess. Taking the share alone as the guiding factor where there are in other places in the document a description of the extent of that share sought to be transferred, would, to my mind, be unreasonable, for it may well be that the parties understood the share mentioned in the document to comprise only that particular quantity of land and not more. The emphasis given in the document upon the area which is mentioned in more than one place both in bighas and in decimals giving the method of measurement of that area, seems to me, however, to indicate that the executant of the document was particularly anxious to make it clear that the land conveyed was the area mentioned and not merely the share specified. The description of the land by boundaries was also no without significance. If within those boundaries only that parti cular area was comprised, then there can possibly be no reason to hold that even that boundary was not sufficient to identify the land sought to be conveyed or was a false description of that land. The decision of the Privy Council to which the learned Subordinate Judge had himself referred shows that where a land sought to be conveyed is described by reference to its boundaries that makes the land sufficiently identifiable ‑and that prevail over the area said to be comprised therein. In the present case therefore, the boundary having been given of the land conveyed, it was necessary for the learned Judge to refer to the said boundary, too, and to endeavour to identify the land conveyed with reference to that boundary. The area described in the document in the present case to be comprised within that boundary is again one bigha or .66 acres. In this, too, in my opinion, the learned Judge was wrong. Hence, even so far as the shares of the heirs of Arshedali are concerned, apart from the question as to whether their interest was transferred by the auction sale held in the rent execution case, there still remains with them some portion of the share of their father Arshedali. There is one further significant omission in the judgment of the learned Subordinate Judge. He has found that the interests of the heirs of Someraddin stood transferred in the auction sale. But he has not said as to how the interests of the heirs of Arshedali also stood transferred to the defendants apart from the transfer which their father obtained under Exh. A. Evidently he could not say that the mares of the heirs of Arshedali stood transferred by the auction sale, for even the defendants them selves conceded throughout that the interests of the heirs of Arshedali were not affected by the auction sale as they had not been made parties in the rent execution case. Therefore, accord ng to the calculation of the learned Subordinate Judge himself if the entire area belonging to Arshedali is 2.46 acres of land, then even conceding that .74 acres stood transferred to Tasenuddin under Exh. A and the 2 annas interests of Someraddin stood transferred to the defendants 1 and 2 by virtue of their auction purchase, the rest of the land was not accounted for in the present case. I have asked the learned Advocate appearing for the respondent to show me how the total land was disposed of. But by no method of calculation could the entire area be accounted for as having passed to either Tasenuddin or his sons, the auction purchasers, in the rent execution case. In this view of the matter, there is, in my view, a serious omission on the part of the learned Judge. However, for the reasons I have already indicated, it seems to me clear that the judgment and decree of the learned Subordinate Judge must be set aside and those of the Munsif restored. I do not propose to send the matter down for further enquiry and calculation of the exact share in which the title of the plaintiff is to be declared, for they do not appear to have disputed at any stage the calculation made by the learned Munsif, namely, 1.70 acres. They will accordingly have their title declared to only the said 1.70 acres. This appeal is, therefore, allowed with costs and the judgment and decree of the Court of appeal below are set aside and those of the trial Court restored. K. M. A. Appeal allowed.