P L D 1962 Dacca 635 (PLP)

IDRIS, J.‑This appeal at the instance of the plaintiff is directed against the decision of the Subordinate Judge, Khulna, in a suit for declaration that the order passed in a certain pro ceeding under section 20 of the East Bengal State Acquisition and Tenancy Act against the father of the plaintiff is void, without jurisdiction and not binding on the plaintiff.

2. The case of the plaintiff shortly stated is as follows: The plaintiff, who has been living separately from his father in a different village, is the owner of the lands mentioned in Schedule A of the plaint and has been in possession of the lands, but in a proceeding under section 20 of the East Bengal State Acquisition and Tenancy Act (hereinafter to be called the Act) against his father, out of these lands, the portion mentioned in Schedule B has been declared as the excess land of his father. The order is void, without jurisdiction and not binding on the plaintiff and he is entitled to retain these lands. Defendant No. 1, the Government of East Pakistan, contested the suit. The defence is that the excess declaration with regard to Schedule B land is not void or without jurisdiction, as the plaintiff who is in joint family with his father has no right, title and interest in these lands and is a mere benamdar of his father. Pleas of non‑service of notice under section 80 of the Code of Civil Procedure and non‑maintainability of the suit in the absence of prayer for confirmation of possession were also raised.

3. The learned Subordinate Judge framed 6 issues out of which issues 1, 3 and 6 are the following "(1) Is the suit maintainable in its present form ? (3) Has the plaintiff his alleged right, title and interest in the suit lands ? Is he entitled to the declarations prayed for ? (6) Is the suit hit by section 42 of the Specific Relief Act ?" The learned Subordinate Judge came to the findings that the plaintiff had no right, title and interest in the lands and that the suit was also barred under section 42 of the Specific Relief Act as no prayer for confirmation of possession or for injunction was made. Accordingly the suit was dismissed. Hence this appeal by the plaintiff.

4. Mr. Bose, the learned Advocate for the appellant, has contended that the order passed in the proceeding under section 20 of the Act against the father of the plaintiff is not binding on him as he was not a party to that. It was also contended that as the plaintiff has been in possession of the suit lands it was for the defendant to prove that the plaintiff is the benamdar of his father and that the defendant failed to discharge this onus. It was further contended that in view of the fact that no evidence either oral or documentary was adduced on the side of the defendant, it should have been held by the learned Subordinate Judge that the plaintiff has his right, title and interest in the suit lands. In support of his contention that the plaintiff is the owner of the suit lands and has been in posses sion of the lands, Mr. Bose referred to the evidence of the plaintiff (P. W. 1) and of his witnesses (P. Ws. 2 to 5). The evidence of the plaintiff is that he has been living separately from his father in the village Abad Chandipur and his father (defendant 6) and his step‑mother (defendant No. 8) lives at Gumantali, his brother defendant No. 7 lives at Munshiganj and that he has right, title and possession in the lands and that in the revisional settlement records the lands have been recorded in his name. The evidence of P. W. 2 Md. Esam Molla is that he has been cultivating the khas lands of the plaintiff which are at Khagraghat for the last 8 years. P. W. 3 Md. Madar Gazi has stated that he possesses in barga 24 bighas of land of the plaintiff in Mauza Gumantali. P. W. 4 Korman Sardar has deposed that he cultivates in barga 42 bighas of lands under the plaintiff for the last 8 or 9 years. P. W. 5 Soleman Sardar who is a man of Abad Chandipur has stated that for the last 13 or 14 years, the plaintiff has been residing at Abad Chandipur, possesses portions of his lands through bargadars and portions himself and that plaintiff's father does not possess the suit lands. No evidence either oral or docu mentary was adduced on the side of the defendants. In view of the unchallenged evidence of the P. Ws., it should have been held by the learned Subordinate Judge that the plaintiff is the owner of the suit lands. The learned Subordinate Judge expressed that although in the settlement records the suit lands were recorded in the name of the plaintiff, it was not impro bable for the father of the plaintiff in order to avoid acqui sition by the Government to have the records prepared in the name of his son. The learned Subordinate Judge also remarked that the plaintiff was possessing the lands on behalf of his father. But there is no evidence that the plaintiff's father got the record prepared in the name of the plaintiff or that the plaintiff was possessing the lands on behalf of his father. In the absence of any such evidence, the learned Subordinate Judge should not have acted on mere surmises. Moreover, as the presumption of correctness created by the settlement records has not been rebutted, it was not for the plaintiff to prove documents of title with regard to the suit lands. The evidence adduced on the side of the plaintiff clearly goes to show that the plaintiff has his right, title and possession in the suit lands. So, the excess declaration made in the proceeding under section 20 of the East Bengal State Acquisition and Tenancy Act against the father of the plaintiff with regard to the suit lands is void, without jurisdiction and not binding on the plaintiff.

5. Mr. Jani Alam, the learned Assistant Government Pleader, contended that the plaintiff was found to be a benamdar of his father in the proceeding under section 20 of the Act and that the remedy of the plaintiff was by an appeal to a proper revenue authority under section 19, subsection (3) of the Act. Mr. Jani Alam also contended that the present suit was barred under section 30 of the Act. But no paper was pro duced on the side of the defendant to show that the plaintiff was held to be a benamdar of his father in the proceeding under section 20 of the Act. Moreover, no such finding would be binding on the plaintiff as he is not a party to it. Record‑of -rights alleged to have been prepared under section 18 of the Act has not been proved. There is also no evidence that the plaintiff was aware of the preparation of any such record‑of- rights. In the circumstances, the contention that the present suit is barred under section 19, subsection (3) and 30 of the Act is not tenable.

6. Plaintiff has 33‑12 acres, that is less than 110 bighas of land in total. He has his homestead in Plot No. 1031 in Mauza Abad Chandipur in which he has got his huts. Plaintiff is entitled to retain 100 bighas of khas land and 10 bighas of land for homestead under section 20 of the East Bengal State Acquisition and Tenancy Act.

7. Mr. Bose also contended that as the plaintiff has been found to be in possession of the suit lands, there was no neces sity for him to make any prayer for confirmation of posses sion or for injunction and that the learned Subordinate Judge was wrong in holding that the suit was hit by section 42 of the Specific Relief Act. As section 42 of the Act provides that plaintiff in a suit for declaration need not ask for further relief and as it has been found that the plaintiff is in possession of the suit lands, there was no scope or necessity for making a prayer for further relief by way of confirmation of possession or for injunction. This view is supported by the case of Kumar, Bhupendra Kishore Acharyya Choudhury and others v. Province of Bengal (P L R 3 Dacca 320), in which it was laid down that when a plaintiff is in possession of the suit lands, the suit for declaration of a certain right would not be barred under section 42 of the Specific Relief Act. In this suit the plaintiff has prayed for a declaration that the order passed in the Miscellaneous Case No. 32 of 1954 started against his father is void, without jurisdiction and not binding on the plaintiff. This declaration can be made as the plaintiff has been in possession of the suit lands.

8. Mr. Jani Alam, the learned Assistant Government Pleader, contended in reply that the suit was hit by section 42 of the Specific Relief Act as no prayer for consequential relief by way of an injunction or for confirmation of possession was made. In support of this contention reference was made to the case of Gladstone Wyllie Co. Ltd. v. Badshah Miah (P L D 1960 Dacca 305). That was a suit for a declaration. that the dismissal of the plaintiff from service was illegal. No prayer for damages was made. This suit was decreed and there was no appeal against the decree, but when the decree‑holder started the execution case, the judgment‑debtor filed objection under section 47 of the Code of Civil Procedure to the effect that the decree was not executable. It was held by this Court that the decree‑holder's suit for a declaration that his dismissal from service was illegal and for reinstatement in his former post was a declaratory suit with no consequential relief and that such a decree was not capable of execution. The facts in the above‑mentioned case have no similarity with the facts of the case before us and the principle laid down there would not be applicable to this case. Mr. Jani Alam also referred "to the case of Dwarka. Prosad v. Krishna Chandra and others (A I R 1939 Pat. 254), in support of his contention that the suit is not maintainable. In that case it was held that in a suit for a declaration that a decree is obtained by fraud and for a consequential relief that the sale in execution of the decree should be set aside and that possession of the plaintiff may be confirmed, the suit should be valued according to the value of the land. This principle has no bearing with the facts of the present case. The principle laid down in the case of Haji Yar Ali Khan Chowdhury v. Mobarak Ali Chowdhury and others (P L R 4 Dacca 497), will also not apply to the facts of the present case. That was a suit for declaration of the office of Mutwalli but as the plaintiff was out of possession of the Wakf estate, it was held that the plaintiff should have asked for possession and as this was not done, the suit was hit by section 42 of the Specific Relief Act. But we have already stated that the plaintiff is in possession of the suit lands. In the case of Halimunnissa v. Hemendra Kumar Roy Chowdhury and others (P L D 1960 Dacca 968), it was held that when the plaintiff is in possession of the suit land and instituted a suit for a declaration that the suit property was not affected by the sale, he can make a prayer for injunction to restrain the defendants from interfering with the plaintiff's possession and in the absence of a prayer for khas possession, the suit would not be hit by section 42 ‑of the Specific Relief Act and that injunction would be the proper remedy. It was contended by the learned Assistant Government Pleader that in view of the principle laid down in the above‑mentioned case as no prayer for injunction was made in this case, the suit would be hit by section 42 of the Specific Relief Act. But the facts of the present case are distinguishable from the facts of the case of Halimunnissa v. Hemendra Kumar Roy Chowdhury and others, as in that case it was held that auction‑purchaser got symbolical posses sion of the auction‑purchased property. As the auction‑purchaser got symbolical possession, there was the possibility that the auction‑purchaser would take actual possession and so a prayer for injunction was necessary in that case. But in the present case, the plaintiff has been in possession and there is no evidence that the defendant has taken symbolical possession. So, there was no necessity for the plaintiff to pray for injunction. Reference was also made to the case of Bejoy Krishna Swarnakar and others v. Governor‑General of Pakistan and others ((1954) 6 D L R 289), but that case has no application to the facts of the present case, that was suit for a certain declaration and for injunction, and the question was raised what should be the proper court‑fees in such a suit.

9. The appellant filed an application in this Court for acceptance of certain documents as additional evidence but Mr. Bose did not press the application at the time of hearing of the appeal. So, this application is rejected.

10. In the result, the appeal is allowed, the judgment and decree passed by the learned Subordinate Judge are set aside and the suit is decreed. The order of the Revenue Officer passed in Miscellaneous Case No. 32 of 1954 under section 20 of the East Bengal State Acquisition and Tenancy Act 1950 (XXVIII of 1951), against Bahadur Ali Sardar in respect of "B" scheduled lands as excess lands is declared void, without jurisdiction and not binding on the plaintiff. The appellant do get costs in both the appeal and the suit from the Government. HASAN, J.‑I agree. Appeal allowed.