P L D 1962 Dacca 23 (PLP)

CHOWDHURY, C. J.‑This appeal, under clause 15 of the Letters Patent, is directed against the decision of a single Judge of this Court in Second Appeal No. 1186 of 1959.

2. This appeal arises out of a suit filed by the appellant in this appeal, for a declaration of title to the disputed property described in schedule 1 and for recovery of khas possession of schedule 2 which forms part of schedule 1 and for confirmation of possession in the rest of land of schedule.

3. Plaintiff's case, shortly stated, is as follows: ‑ Schedule 1 property, or the property described in schedule 1 originally belonged to pro forma defendant No. 12 in maliki right in which he was in khas possession. By registered kabala, dated 5‑5‑57, he sold the land to the plaintiff for a sum of Rs. 1,500 and plaintiff obtained possession but the principal defendant dispossessed the plaintiff from the schedule 2, which formed part of schedule 1, on 11‑4‑58, and the plaintiff is still in possession of the rest of the land of the schedule 1 but his possession of that land was also threatened. So he filed the suit for declaration of his title to the disputed land described. In schedule 1 and for recovery of khas possession of the land of schedule 2 and confirmation of the possession of the rest of the land of schedule 1.

4. The suit was contested by defendant No.

1. His case is that the property belongs to him and defendants Nos. 2 to 4 on the strength of settlement from defendant No. 12 in Ashar, 1358 B. S. which corresponds to July 1951, and they are In possession since then. His further contention is that after giving settlement to defendant Nos. 1 to 4 whatever interest pro forma defendant No. 12 had, was that of a superior‑interest‑holder i.e., rent receiving interest which after the notification dated the 2nd April 1956, giving effect from the 14th April 1956, having been acquired by the Government, whatever right, title and interest the pro forma defendant No. 12 had was vested in the Government from that date and he had no saleable interest in the property and as such the plaintiff has not acquired any interest by purchase from defendant No. 12.

5. Trial Court found title with the plaintiff and decreed the suit of the plaintiff as prayed for holding that the defendant has not acquired any interest by settlement from defendant No. 12 and the documentary evidence, the rent‑receipts Exhs. A‑A(4), on which the defendant relies for the purpose of establishing the settlement, were fraudulent and collusive document and did not create any jote right in favour of the defendants.

6. The trial Court also found that proforma defendant No. 12 left Pakistan about 4 or 5 years ago but the defendant taking advantage of his absence squatted on the disputed land and were in possession of the same. Therefore, the trial Court passed a decree for recovery of khas possession of the disputed land.

7. Against this decision there was an appeal, which was heard by the Second Additional Subordinate Judge, Sylhet. The learned Subordinate Judge was of the view that the burden of proof lies on the plaintiff to prove his title in the suit land and not on the defendant to prove their tenancy, and if the plaintiff failed to prove his title plaintiff's suit is bound to fail and in that view the learned Subordinate Judge held that the transfer by proforma defendant No. 12 to the plaintiff after the notification under section 3 of the East Bengal State Acquisition and Tenancy Act, 1950, without the permission of the Collector under section 9 of the Act is null and void and the plaintiff has not acquired any interest by the said purchase and, therefore, dismissed the suit of the plaintiff. At page 15 of the paper‑book the learned Subordinate Judge observed: "pro forma defendant No. 12 was undisputedly a rent- receiver. The rent‑receiving interest of all rent‑‑receivers were acquired by the Provincial Government under a notification dated 2nd of April 1.956, with effect from 14th of April 1956. . . . . . . . . . . . . . . . . . . . . . . So in view of this position .in law the kabala Exh. 1 must be deemed to be null and void in view of subsection (2) of the section 9 of the East Bengal State Acquisition and Tenancy Act, 1950." As to the burden of proof, the learned Subordinate Judge at page 16 of the paper‑book observed: ‑ " As I have already said, that the defendant denied the plaintiff's title in the suit land, so the burden of proof of his title by the plaintiff lay heavily upon the plaintiff himself and the learned Court below wrongly placed the burden upon the defendant to prove their tenancy right." As to the tenancy of the defendant, the learned Subordinate Judge observed at page 17 of the paper‑book as follows: ‑ " Of course it is true that Jatindra Mohan was not examined in this case nor his touzi, Chittas or other collection papers were produced, yet there is no reason to hold that these dakhilas were false and fabricated as it was found by the learned Court below." The learned Subordinate Judge goes further to say that though the plaintiff‑respondent challenged the genuineness of these dakhilas Exhs. A to A‑3, nevertheless the plaintiff' also failed to prove by any iota of evidence that the suit land was in khas possession of proforma defendant No. 12, which according to him along with the absence of the mention, in the kabala, Exh. 1, that the land was in khas possession of the proforma defendant No. 12 goes a great way to disprove the plaintiff's allegations and prove the defendant's contention, with these observations and the learned Subordinate Judge though dismissed the suit of the plaintiff did not set aside the finding of the trial Court that these dakhilas were fraudulent and collusive documents brought about for the purpose of this suit in collusion with the man of defendant No. 12.

8. Against this decision, there was an appeal being Second Appeal No. 1186 of 1959 in the High Court. In the appeal two points were raised, namely, the first is, that " since there is no evidence to show that the pro forma defendant No. 12 was a rent -receiver the Court below had no jurisdiction to hold that the suit properties were hit by the provisions of section 9 of the East Bengal State Acquisition and Tenancy Act. " The Second point raised was that the appeal before the lower Appellate Court at the instance of defendant No. 1 only was not maintainable in the absence of proforma defendant No. 12 who was a necessary party in the appeal. As to the first point, the learned Judge observed as follows:- " But a reference to the plaint shows that the said proforma defendant No. 12 has been described throughout as a talukdar and in paragraphs 6 and 16 of the written statement the defendant did specifically raise this question, namely, that all the rent‑receiv ing interests of the said proforma defendant No. 12 including those in the lands in dispute had been acquired by the Govern ment under the East Bengal State Acquisition and Tenancy Act ". Hence it cannot be said that this point was an entirely new point of which the plaintiff bad no notice whatsoever at any earlier stage." Therefore, according to the learned Judge " there was nothing wrong in the learned Judge having disposed of the case on this point ". In course of argument in support of the first point it was pointed out that there was no evidence that permission under section 9 of the Act was necessary and was not taken. The learned Judge is of the opinion that : "since the defendants denied the title and possession of the plaintiff the onus lay entirely upon him to prove his title and possession and if he has failed to prove any element thereof, it is he who should suffer and not the other side ".

9. As to the second point, the learned Judge is of the view that under Order XLI, rule 4 of the Code of Civil Procedure, any one of the defendant can file an appeal and that the appeal at the instance of the defendant No. 1 was not incompetent. In this view of the matter the appeal of the plaintiff was dismissed. Hence this appeal under clause 15 of the Letters Patent.

10. It is not disputed by Mr. A, M. Sayem the learned Advocate for the appellant in the letters patent appeal, that initial burden lies on the plaintiff to prove his title, but he contends that the plaintiff discharged that onus by producing the registered kabala, and it is the case of the defendant that this kabala is `9 hit by section 9 of the East Bengal State Acquisition and Tenancy Act as it was without the permission of the authorised officer and under subsection (2) of that section, it is null and 6 void, the burden shifts on the defendant to prove that the kabala is hit by section 9 of the said Act. We think this contention of the learned Advocate is of considerable force. What we find is that both the learned Subordinate Judge and the learned Judge of the High Court proceeded on the basis that the interest claimed by the pro forma defendant No. 12 was that of a tenure holder, therefore it must be a rent‑receiving interest, as it appears from the judgment of the learned Subordinate Judge at page 15 of the paper‑book already quoted that "proforma defendant No. 12 was undisputedly, a rent‑receiver " and in the judg ment of the High Court. The learned Judge observed: - " But a reference to the plaint shows that the said proforma defendant No. 12 has been described throughout as a talukdar and in paragraphs 6 and 16 of the written statement the defendant did specifically raise this question, namely, that all the rent receiving interests of the said proforma defendant No. 12 including those in the land in dispute had been acquired by the Government under the East Bengal State Acquisition and Tenancy Act ".

11. It is no doubt true, in the kabala the land purchased was described as "Maliki shatta bishaitta" which means "having the right of malik"; but it further states "Ami krayita shutre shuttoban O dakhalkar thakia bhog dakhaldhikar karia ashitechi," which means that "by purchase I am enjoying the same keeping it in my possession in maliki right ". In the plaint the land has been described as "Maliki khas O khamar" which means "maliki right in khas possession of the malik". The disputed land is the purchased land of the plaintiff from defendant No. 12 and again defen dant No. 12 purchased the self‑same land from Nabin Chandra and others and in the sale‑deed also it is described as a khas dakhali land. There is no evidence on the record that besides this land the pro forma defendant No. 12 have got any other land in superior interest or he has got any land held by tenant under him. Simply because it is a khas khamar land " of a person in a taluki right does not necessarily make him a rent- receiver to be hit by section 9 of the East Bengal State Acquisition and Tenancy Act. It is no doubt true that the defendant in para graphs 6 and 16 of the written statement stated that after the acquisition of the superior interest by the Government under the East Bengal State Acquisition and Tenancy Act the proforma defendant No. 12 had no saleable interest. It was in the sense that the defendant themselves claimed a raiyati right in the suit land under the pro forma defendant No. 12 by virtue of those dakhilas Exhs. A to A (3) and, therefore, described the interest of proforma defendant No. 12, after the alleged settlement, as that of a superior‑interest‑holder affected by the acquisition. They do not assert nor adduced any evidence to show that the defen dant No. 12 is also otherwise rent‑receiver. On the other hand they themselves in the written statement admitted that before the alleged settlement to them it was the khas land of proforma defendant No.

12. Nowhere in the written statement or in the evidence the defendant asserted that proforma defendant No. 12 has got land other than the suit land, which was held by tenants under him and thereby he was a rent‑receiver. It seems to us that the learned Subordinate Judge and the learned Judge of the High Court totally misconceived and misinterpreted that words "Maliki shattabishitta " and the word "Talukdar" as if there cannot be any taluki interest without a rent‑receiving interest.

12. The trial Court has definitely come to a finding and gave a very strong reason to hold that the rent‑receipts Exhs. A to A(3) on which the defendant based his claim of settlement was forged, fraudulent and collusive and created for the purpose of this suit and in fact there was no settlement creating any jote right in favour of the defendant. This finding of the trial Court has not been disturbed either by the learned Subordinate Judge or by the learned Judge of the High Court. It is true the learned Subordinate Judge held that though the plaintiff‑respondent challenged the genuine ness of the dakhilas, Exhs. A to A (3) but nevertheless plaintiff also failed to prove by any iota of evidence that the suit land was in khas possession of proforma defendant No. 12 at the time of plaintiff's purchase in 1364 B. S., and there is absence of recital In the kabala Exh. 1 that the suit land was in khas possession of the proforma defendant No. 12 and it goes a great way to disprove the plaintiff's allegations and prove the defendant's contention. We must point out here that it is not correct to say that there is absence of recital in the kabala Exh. 1 that the suit land was in khas possession of the proforma defendant No.

12. I have already quoted the relevant Bengali portion of the kabala, which clearly recites that it is the land in his khas possession. Besides, the learned Subordinate Judge has nowhere specifically set aside the definite finding of the learned Munsif that these documents‑rent receipts were created for the purpose of the suit and fraudulently brought about in collusion with the man of defendant No.

12. In view of this finding that the defendant had no ratyati right and in view of absence of any evidence to show that the proforma defendant No. 12 is otherwise a rent‑receiver, section 9 of the Act cannot come into play, when the section itself provides that no rent‑receiver etc., shall, except with the previous permission of a prescribed authority, transfer his rights and interests in any estate by sale, gift etc., or transfer any land in his khas possession by any such means. Sub‑clause 2 of the same section 9 of the Act provides as follows: ‑ " (2) Any transfer made in contravention of the provisions of subsection (1) shall be null and void." Therefore, for the application of section 9 of the Act the transferor must be a rent‑receiver. If he is not a rent‑receiver there is no bar of his transferring any land in his khas possession but not a exceeding ten bighas of land, as subsequently, introduced by then amendment of section 9 of the Act which runs as follows: ‑ " Provided that any such rent‑receiver shall be entitled to transfer, by private sale or mortgage only, agricultural land in his khas possession not exceeding ten standard bighas in the aggregate, without any such permission." This amendment was introduced on the 15th August 1957, that is, after plaintiff's kabala on 5‑5‑

57. Naturally a question arises whether, in view of the addition of this proviso to section 9 of the Act by subsequent amendment, it will have a retrospective effect or not, but the question does not trouble us here as there is no evidence that proforma defendant No. 12 for the purpose of section 9 of the Act was a rent‑receiver within the definition of rent‑receiver as given in the Act, we mean, the East Bengal State Acquisition and Tenancy Act, 1950.

13. Mr. Mirza Golam Hafez, the learned Advocate for the respondent contends that it is hit by sections 3 and 5 of Act XXXIII of 1951 (the East Bengal Transfer of Agricultural Land Act, 1951), by which a restriction was placed in the transfer of agricultural land exceeding ten standard bighas. In the present case the land transferred is about 101 kears (kear measurement prevailing in the District of Sylhet). The learned Advocate has not been able to satisfy us that 10 kears exceeds 10 bighas, whereas, the learned Advocates appearing on behalf of the appellant, and one of them happens to be from the District of Sylhet, stated before us that 1 kear is a bit less than a bigha of land and 10 kears will not exceed ten bighas of land. Be that as it may, this point was never raised in any Court before and that under the aforesaid Act the transfer is void only to the extent of the land in excess of 10 bighas G and not the whole transfer. In these circumstances we are not in a position to hold that transfer of any portion of this land is in excess of 10 bighas and therefore hit by sections 3 and 5 of the aforesaid Act XXXIII of 1951.

14. Now coming to the second point it is no doubt true: under Order XLI, rule 4 of the Code of Civil Procedure any one of the plaintiffs or of the defendants may appeal from the whole decree where there are more plaintiffs and more defendants than one in a suit and the decree appealed from proceed on any ground common to all the plaintiffs or to all the defendants. It is not clear whether this enabling provision of Rule 4 of: Order XLI of the Code exhonerates, the person filing the appeal, from impleading the other plaintiffs or defendants even as a party respondent to the appeal. We need not go into that disputed question but one thing is certain that the appeal must proceed on any ground common to all the plaintiffs or to all the defendants. Here the contesting defendants are claiming interest against the proforma defendant No. 12 who sold the land to the plaintiff describing it as his "maliki khas land". Therefore, in no circumstance it can be said that the ground is common to the contesting defendants and to proforma defendant. No.

12. It has been stated in the judgment that the vendor was impleaded as a proforma defendant. There is no provision in the Code of Civil Procedure to describe a defendant as a proforma defendant though we some time describe some defendant or defendants as proforma for classification. Here the plaintiff wants declaration of his title not only against the contesting defendant but also against the proforma defendant No.

12. In no circumstance, it can be said that the ground on which the defendants are contesting is a ground common to defendant No. 12 also particularly, when the defendant No. 12 has not riled any written statement in the suit. In our view, the decision of the learned Subordinate Judge and the High Court that the plaintiff has not acquired any title because of the fact that his kabala is hit by section 9 of the Act or that the proforma defendant No. 12 had no saleable interest in the disputed land at the time when he sold the land to the plaintiff, is wrong. Further we may point out that though the defendant raised the point that at the time of the kabala the proforma defendant No. 12 had no saleable interest because his interest vis‑a‑vis their interest was that of a rent‑receiver and they have not specifically raised a question that the kabala was otherwise hit by section 9 and, therefore, it is null and void. Be that as it may, it seems to us that the learned Subordinate Judge and the learned Judge of the High Court proceeded on an assumption that a talukdar cannot but be a rent‑receiver but in this particular case it is not a fact and it was his khas land and that there is no evidence that he has got any rent receiving interest. The result, therefore, is this appeal is allowed and the judgments and decrees passed by the learned Subordinate Judge and the learned Judge of the High Court in Second Appeal No. 1186 of 1959 are set aside and those of the trial Court are restored. There will be no order as to costs in 1,this appeal, in the circumstances of the case. M. R. Khan, J.‑I agree with my Lord, the Chief Justice. K. M. A. Appeal accepted.