P L D 1963 Dacca 1 (PLP)

"it was argued by Dr. Gupta and conceded to by Dr. Pal on behalf of the respondents, that the Court should take into its consideration the altered circumstances brought about by Legislative changes which have supervened since the decision under appeal was given. Pursuing this argument Dr. Gupta submitted that by reason of the vesting of the entire interest of the respondents in the State Government their right to get, an effective decree for eviction against the appellants has become lost and the latter have automatically become direct tenants under the State simultaneously with the vesting. Dr. Pal on behalf of the respondents advanced a two‑fold argument for repelling this contention of Dr. Gupta. He submitted in the first place, that the State was practically in the position of an; assignee and as it has not chosen to defend the appeal in spite of service of notice, the respondents can on the analogy of rule 10 of Order XXII of the Code of Civil Procedure, defend the appeal. The second argument of Dr. Pal was that whatever may be the legal effect of the order of vesting the conditional decree for evicting passed by the lower Appellate Court stands good until it is set aside by a competent Court or rendered in fructuous by operation of law. Dr. Pal submitted that there is no express or implied provision in the West Bengal Estates Acquisition Act which nullifies the effect of all decrees for eviction passed before the date of vesting but pending in appeal on that date." This argument of Dr. Pal was accepted as of substance and was given effect to for the following reasons; "A tenant against whom a decree for evicting has been passed before the date of vesting under the West Bengal Estates Acquisition Act becomes a trespasser in relation to his land from the date of the decree subject to the result of an appeal which he may have preferred against the decree. The decree is left untouched by the above Act and so it would be absurd to say that the effect of the decree is completely nullified by reason of the vesting." The provisions of the Estates Acquisition Act of West Bengal may not be pari materia but they are similar to the provisions of the East Bengal State Acquisition and Tenancy Act. I have quoted these decisions not because they are binding or applicable in al: force to the facts of the present case, but because, it seems to me, that the principles enunciated therein are well‑reasoned. Be that as it may, I do not find any distinction between khas possession and right to khas possession for the purpose of State Acquisition and Tenancy Act.

2. In the circumstances; I think my learned brother is perfectly right in holding that the State Acquisition and Tenancy Act has not affected the right of the decree holder; section 471 of the Code of Civil Procedure must be rejected and this appeal should be allowed with costs. M. R. KHAN, J.‑This appeal by the decree‑holder arises out 1 of an application under section 47 of the Code of Civil Procedure.

5. Admittedly, the estate bearing Tauzi No. 1740 of the Chittagong Collectorate Taraf Mongata Ram Hajari was auction‑purchased by the appellant at a revenue sale. After the auction‑purchase of the estate, the appellant was said to have duly, annulled all encumbrances thereon. Thereafter he brought Title Suit No. 102 of 1949 in the First Court of the Munsif at Satkania for the recovery of khas possession of some lands appertaining to the said estate (i.e., the lands mentioned in the connected petition for execution) after evicting the judgment debtors‑respondents there from and eventually .got a decree in that suit on 24‑7‑

52. The decree was put to execution on 24‑7‑53, and during the pendency of the execution case, the said estate of the decree‑holder was acquired by the Provincial Government under subsection. (1) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (hereinafter called "the Act") with effect from the 1st May 1954. The judgment debtors 1 and 2, who are respondents 1 and 2 respectively in this appeal, then filed a petition under section 47 of the Code of Civil Procedure contending that the estate having been acquired by the Provincial Government under the Act, the decree‑holder had no locus standi to proceed with the execution bf the decree. Upholding this contention, the executing Court `dismissed the execution, case. An appeal against the order dismissing the executing case was also dismissed. The decree‑holder then preferred the second appeal. My learned brother Mr. Justice Baquer, who heard the second appeal sitting singly, referred the case to a larger Bench stating that the point involved was new and complicated.

6. The question involved here is whether in view of the acquisition of the appellant's estate the appellant has locus standi to execute the decree for khas possession. Relying on sub sections (2) and (4) of section 3 of the Act, both the Courts below held that with the, acquisition of the estate, the decree‑holder ,ceased to "have any locus standi to execute the decree. An examination of the relevant provisions of the Act will however reveal that the ‑view taken by the Courts below is erroneous. B7 notification No. 5593 L. R. dated the 13th April 1954, issued under subsection (1) of section 3 of the Act, the Provincial Government acquired all tenants of the appellant in his estate bearing Taarzi No, 1740, with effect from the 1st May 1954. The notification having been issued under ,subsection (1) 6.f section 3; the consequences enumerated in clauses (a) to (h) of subsection (4) of that section ensued. It may be noted that no khas land of the appellant was acquired by any notification under subsection (2) of section

3. Therefore, the Courts below were not correct in placing reliance also on the said sub section (2) in support of their view. However, of the consequences enumerated in clauses (a) to (h) ' of subsection (4) of section 3, those mentioned in clauses (a), (e) and (f) are material for our purpose and are reproduced below: --‑ "(4) On and from the date specified in a notification under subsection (1)‑ (a) All interests of the rent‑receivers in estate, taluks, tenures, holding or tenancies specified in the notification, including their interest in all lands in their khas possession, and interests in all such soil and rights to minerals, in such estates, tenures, holdings or tenancies . . . . . shall vest absolutely in the Provincial Government free from all encumbrances other than sub‑tenancies; (e) all tenants holding lands in such estates, taluks or tenancies directly under the rent‑receivers specified in the notification under subsection (1) shall become tenants directly under the Provincial Government and shall pay rent at the existing rate, in respect of the rent‑paying lands so held by them, to the Provincial Government and not to any body else. (f) all such rent‑receivers shall be entitled to hold as tenants directly under the Provincial Government such of their khas lands as has not been acquired under subsection (2) and shall be liable to pay to the Provincial Government the rent determined for such lands under section 5".

7. Of the said clauses, clauses (a) and (f) being inter related should be read together. These two clauses read together mean that although all interests of rent‑receivers in estates, taluks etc. including their interests in khas lands vest in the Provincial Government from the date specified in a notification under subsection (1) of section 5, the rent‑receivers shall, not withstanding such vesting of interest, be entitled to hold as tenants directly under the Provincial Government such of their khas lands as have not been acquired under subsection (2) of that section being in excess of the maximum limits prescribed by section 20 of the Act. While clause (a) refers to all interests of rent‑receivers, including their interests in lands their khas l possession, that clause does not, in terms, include also decrees for khas possession of lands obtained by rent‑receivers prior to the acquisition of their estates, taluks etc. The mere facts that the lands of such decrees appertained to their estates, taluks etc., before their acquisition cannot go to show that the decrees themselves are also covered by clause (a). Also section 44 of the Act which provides for vesting of interests of the rent‑receivers in the Provincial Government under the normal procedure for acquisition does not lay down that the decrees for khas, possession obtained by outgoing rent‑receivers prior to the acquisition of their estates, taluks etc. shall vest in the Provincial) Government. The only decrees whose subject‑matters were to vest in the Provincial Government under clause (c) of sub‑1 section (4) of section 3 and clause (7) of section 44, read with If section 61 of the Act, were decrees for arrears of rent obtained before acquisition of the interests of rent‑receivers. The acts does not appear to contain any other provision with regard t9 vesting of decrees. Thus, decrees for khas possession obtained by outgoing rent‑receivers prior to the acquisition of their, interests in estates, taluks etc. do not vest in the Provincial Government under any provision of the Act. Therefore, the decree for khas possession obtained by the appellant in the case before the acquisition of his estate under subsection (1) or section 3 did not vest in the Provincial Government. Section 63 of the Act, expressly provides that no execution of a decree for arrears of rent which was pending on the date of acquisition of the interests of a rent‑receiver would be proceeded with, by such rent‑receiver, the arrears involved having vested in the Provincial Government. But the Act does not contain similar or any provision with regard to execution cases arising out oft decrees for khas possession obtained by outgoing rent‑receivers and pending on the date of acquisition of their interests. This is clearly indicative of the intention of the framers of the Act not to interfere with the decrees for khas possession and the pending execution cases arising from such decrees. The appellant's decree for khas possession not having vested in the Provincial Government and the execution thereof not being affected by any provision of the Act, the decree is executable at the instance of the appellant notwithstanding the acquisition of all his interests in the estate bearing Tauzi No. 1740. Also the following further consideration leads to the same conclusion. With the passing of the decree for khas possession in favour of the appellant on 24‑7‑52 the respondents against whom the decree was passed became trespassers in respect of the decretal lands. Thus, the respondents cannot hold those lands as tenants under the Provincial Government under clause (e) of subsection (4) of section 3 of the Act. The appellant alone being the rightful owner of the decretal lands and his right to get khas possession having been established by the decree, those lands may be treated in law as the khas lands of the appellant, although the delivery of actual possession thereof is yet to be taken in execution of the decree. In a similar case decided by the Supreme Court, their Lordships held thus: --‑ "The respondent having been held by a competent Civil Court to be a trespasser, irrespective of whether he has been actually evicted or not of the possession of the land for the purpose of considering whether the appellants are in khas possession within the scope of section 2(15) must in law be deemed to be with them who are the true owners of the lands, and until their claim to retain possession of the land under section 20 has been finally determined, the respondent cannot resist his ejectment " . . . . . (Vide the unreported decision in Civil Appeal No. 34 of 1958 (Mathura Mohan Chowdhury and others v. Sultan Ahmed Sharif).

8. Mr. Mofakhar, the learned Advocate appearing on behalf of the respondents submits that the decision of the Supreme Court in the aforesaid case does not apply to the present case for the reason that the decree in that case was passed in a suit for ejectment after the determination of the tenancy by notice but the decree in the present case was passed in a suit for the recovery of khas possession of the decretal lands after evicting the persons in possession of these lands. The decrees in both the cases were passed prior to the acquisition of the interests of the decree‑holder as rent‑receiver under section 3 of the Act. The decision of the Supreme Court quoted above, therefore, applies equally to the present case. Hence the lands covered by the appellant's decree are, in law, his khas lands within the meaning of clause (15) of section 2 of the Act. That being so, the appellant shall be entitled to hold those lands as tenant directly under the Provincial Government under clause (f) of subsection (4) of section 3 of the Act subject to the acquisition thereof, if any, under subsection (2) of that section. As the decretal lands formed part of the appellant's estate since acquired; the appellant is entitled to get compensation for such lands under section 3(5) read with section 37 or section 39 of the Act, whichever is applicable. The lands covered by the appellant's decree ceased to be tenanted lands with the annulment of encum brances by the appellant after his auction‑purchase of the estate at a revenue sale. At any rate, those lands ceased to be tenanted‑lands with the passing of the decree for khas possession

1. Therefore, compensation for those lands can be assessed only6 under section, 30 treating them as the appellant's khas lands an not under section 37 which relates to rates of compensation for rent‑receiving interests. It follows from these that the appellant's decree for khas possession is still executable. The decree in question is not one for the recovery of khas possession alone; the decree also allowed costs. There is nothing in the Act, which is capable of being construed as frustrating such a decree or rendering it in-executable or disentitling the decree‑holder to execute it.

9. In the absence of any impediment created by the Act in the way of execution of the decree, the appellant is entitled to put the decree into execution both for the recovery of khas possession of the decretal lands and realization of costs.

10. In the result, the appeal succeeds and is allowed with costs.

11. The judgment and order of the lower appellate Court confirming those of the executing Court are set aside. The objection of the respondents under section 47 of the Code of Civil Procedure is disallowed. The execution case shall proceed as usual. K. B. A./A. H. Appeal allowed.