P L D 1964 Dacca 510 (PLP)

8. The facts in the case of Krishna Ranjan Chowdhury v. Hemchandra Das Chowdhury ((1957) 9 D L R 159) were that the plaintiff in that case granted a lease for a period of ten years to the defendant with effect from year 193 and this lease expired at the end of April 1946. After serving notice ors the defendant to quit, that suit was instituted on 21‑5‑1946, and on 19‑11‑1947, that was decreed by the Court of the first instance. Against that decision an appeal was preferred which was dismissed in the second appeal before this Court, the tenant‑appellant urged that he was entitled to the protection under section 88 of the Act. It was held that the date that should be taken for the purpose of adjudication would be the date of the institution of the suit and that 12 years not having been completed on 21‑5‑1946, the date on which that suit was instituted, the tenant was not entitled to protection against eviction available to a person with 12 years' possession under section 7 of the Act. It was also laid down that as a rule the date of the commencement of the Bengal Non‑Agricultural Tenancy Act should be taken to be the date of the institution of suit, as if the Act was in force at that time.

9. In the case of Delbar alias Dalu Sardar v. Sarada Sundari Debya (P L D 1962 Dacca 548), it has been observed that the period of tenant's "possession after the institution of a suit for ejectment cannot be taken into consideration as nowhere the Fast Bengal Non Agricultural Tenancy Act of 1949 provides that even if such a tenant did complete 12 years of possession before the institution of the suit, but completed 12 years' possession during the pendency of the suit, an appeal or execution proceeding pending at the time of commencement of the Act, he can count upon that period of possession or any portion thereof after the suit in calculating 12 year.‑. The material point of time for compu tation of the period of 12 years is the date of the institution of the suit . . that as a rule, the date of commencement of the Act shall be taken to be the date of the institution of the suit as if the Act was in force at that time."

10. In the present case, the lease was for a period of 10 years from the middle of May 1937, up to middle of April 1947. The st,it was instituted a few days after the expiry of the lease. The Act came into operation on 20‑10‑1949. In view of the principles laid in the above‑mentioned cases, defendants' possession subsequent to the institution of the suit cannot be tacked to the period up to the institution of the suit, to complete 12 years, as the material point of time for com putation of the period of 12 years is the date of the institution of the suit (21‑5‑1947), and the date of commencement of the Act shall be taken to be the date of the institution of the suit, as if the Act was in force at that time. Construction of sections 88 and 89‑A to include the period from the date of the institution of the suit up to 20‑10‑1949 would lead to a very, anomalous position, for, it would be open to a tenant‑defendant to adopt dilatory tactics and get his possession extended from time to time, because, if a Court (including all Courts up to the highest Court) could not dispose of the matter for many years; the tenant would automatically get benefit of this.

11. Mr Khandkar, the learned .Advocate for the respon dents, has referred to the case of Bengal River Service Ltd. v. Sree Murali Dhar Roy (P L D 1959 Dacca 659), in support of the contention that the tenant is entitled to tack the period from the date of the institution of the suit up to 20‑10‑49 on which the Act came into operation and that as by that date, 12 years' possession was complete, the defendants are not liable to ejectment.

12. Their Lordships Amin Ahmed and Chowdhury, JJ. as they were at that time, decided the case reported in P L D 1959 Dacca 659 and 9 D L R

159. His Lordship Chowdhury, C. J., delivered the judgment in the case reported in P L D 1962 Dacca 546 and his Lordship M. R. Khan, J., agreed. Mr. Khandkar has contended that the: decision in the case of Bengal River Service Ltd. v. Sree Murali Dhar Roy was not brought to the notice of their Lordships at the time of decisions in 9 D L R 159 and P L D 1962 Dacca

548. It has been submitted that in view of the conflict in the decision in P L D 1959 Dacca 659 with those in 9 D L R 159 and P L D 19:;2 Dacca 548 this case may be referred to a larger Bench for clarification on the point whether the period subsequent to the institution of the suit up to the date on which the Act came into operation can be tacked with the period prior to the suit, in com puting the period of 12 years' possession.

13. The learned Advocate‑General on behalf of the appellants has contended that in reality there is no conflict between the decision in P L D 1959 Dacca 659 and the decisions in 9 D L R 159 and P L D 1962 Dacca

548. I cannot accept this contention as the conflict in the decisions appears to me to be apparent.

14. It has been next contended by the learned Advocate -General that notwithstanding the conflict, if there be any, in the above decisions, the principle in the more recent cases of this Court maybe followed. I agreed with this view and I accept the principle laid down in the two latter cases in 9 D L R 159 and P L D 1959 Dacca

548. The date of the institution of the suit is to be taken as the date of the commencement of the Act and the defendants are not entitled to tack the period from the date of the institution of the suit up to 20‑10‑1949. the decision of the learned Subordinate Judge that defendants are not liable to ejectment as they have completed 12 years' possession by! possessing the land up to 20‑10‑1949 cannot be upheld.

15. It has been further contended by the learned Advocate General that the lower appellate Court erred in law in dismissing the suit in tote as the suit was compromised with defendants 1, 1 (kha) 3 and 5 who had given up their interest in favour of the plaintiffs and as the share of defendants 4 and 7 series who was only two annas in toto. In view of the compromise against defendants 1, 1 (kha), 3 and 5, the decree so far as their interest, could not be disturbed. But it is difficult to ascertain at this stage without investigation what is the extent of the share of the compromising dependants. Moreover, it is also not necessary to investigate this matter of the share of the compromising defendants as the judgment of the lower appellate Court is going to be set aside.

16. Now, I shall deal with the preliminary objection raised by the learned Advocate on behalf of the respondents, against maintainability of the appeal at the instance of the two appellants 1 and 2 who are plaintiffs 14 and 13 respectively in the suit. Regarding appellant No. 2 Pande Ali Mia, the objection is that as his prayer to be substituted in place of the plaintiffs 1‑12 was refused up to this Court, he could not be added as a party to the suit and that as such the appeal at his instance is not maintainable. Pande Ali Mia filed an application on 18‑1‑1952 to be substituted in place of plaintiffs 1‑12, under Order XXII, rule 10 of the Code of Civil Procedure. That objection was rejected by the learned Munsif. On 23‑1‑1952, Pande Ali Mia filed another petition for substi tution and that was also rejected by the trill Court. There was an appeal against that order and the learned Subordinate Judge dismissed the appeal. Against that order, Pande Ali Mia moved this Court in its revisional jurisdiction. This Court in Civil Revision Case No. 770 of 1962, rejected the application for revision of the order passed by the learned Subordinate Judge and the rule was discharged on 31‑5‑1955. Trial Court received back the record from the High Court on 21‑12‑1955. On 23‑12‑1955, Kamaruddin (plaintiff No. 14 and appellant No. 1) filed an application for adding him as a plaintiff or for substitution. With this petition, a power signed by him was filed. In the body of the application, both Kamaruddin and Pande Ali Mia were named as petitioners. The petition was put up for order on 29‑12‑1955. From the date, it was adjourned to 9‑1‑1956 for orders in presence of pleaders of both parties. On that date, the lawyers were heard. The pleader for defendants stated that he had no further institutions. The learned Munsif allowed the application anal both Pande Ali Mia and Kamaruddin were added as plaintiffs 13 and 14 respectively.

17. On 26‑4‑1956, defendant No. 4 filed an additional written‑statement raising the objection that Pande Ali Mia could not be added as a plaintiff. Mr. Khondkar has contended that by suppression of the order passed in Civil Revision No. 770 of 1952, fraud was practised on the Court and that this order adding Pande Ali Mia as a plaintiff was illegal. But in additional written statement filed by defendant No. 4, on 26‑4‑1956, that is, subsequent to the order adding Pande Ali Mia could not be added as a plaintiff, because of the order in Civil Revision Case No. 770 of 1952. Moreover, the pleader of the defendants was informed of the application filed on 23‑12‑1955. In the circumstances it would be difficult at this stage to state without investigation whether the order for addition of Pande Ali Mia as plaintiff was obtained fraudulently. Mr. Khondkar has also contended that as Pande Ali Mia did not file any fresh power with Kamaruddin, he could not be treated as a petitioner with Kamaruddin and that consequently the order to add him as a plaintiff is an order on the basis of no petition. Without investigation of the question whether the pleader who had signed the petition on 23‑12‑1956 on the basis of power dated 23‑12‑1956 had any previous power from Pande Ali Mia, it is difficult to hold that the petition dated 23‑12‑1956, could not be regarded as a petition on behalf of Pande Ali Mia also.

18. The learned Munsif held that the suit was not bad for misjoinder of parties. It was also held that the suit was maintainable at the instance of plaintiffs 13 and

14. In the memorandum of appeal before the lower appellate Court, the point was taken that the trial Court erred in treating plaintiffs 13 and 14 as parties. But the judgment of the lower Appellate Court shows that this objection was not at all pressed at the time of hearing of the appeal.

19. Regarding Kamaruddin, there was no objection in the additional written‑statement filed by defendant No. 4 onl 26‑4‑1956 that he could not be made a party. Order I, rule 13 of the Code of Civil Procedure enjoins that on objection regarding misjoinder of parties is to be taken at the earliest stage. In this case, no objection was taken in the additional written statement that Kamaruddin could not be made a party. 1n the circumstances, the objection that Pande Ali Mia and Kamaruddin were illegally made parties to the suit cannot be entertained at this stage.

20. It has been next contended by Mr. Khondkar that the kabuliyat Exh. 4 is not a valid document and was not admissible in evidence, as it was not executed by the lessors and the lessee, although it was executed after the amended Transfer of Property Act (XX of 1929) and that as such plaintiffs could not claim ejectment on the basis of the expiry of the period of ten years mentioned in it, but that the tenancy is to be regarded as a tenancy from month to month and that the defendants could be ejected after service of due notice under section 106 of the Transfer of Property Act. In this connection, reference has been made to the case of Md. Abdul Aziz v. Province of East Pakistan and others (P L D 1961 Dacca 710) ; Ram Kumar Das v. Jagdish Chandra Deo Dhablal Deb and another (AIR 1952 S C A 79) ; Almas Ullah and others v. Srish Chandra Dam and others (P L D 1952 Dacca 256) and Jagadish Narain and others v. Nawab Said Ahmad Khan and others (50 C W N 477). But these cases have no bearing on the facts of the present case, as it has been represented by the learned Advocate‑General on behalf of the appellants that the kabuliyat Exh. 4, was also executed by Sachidanada Roy (plaintiff No. 1) on behalf of the firm Ramdurlav Sadhu Charan Roy in 1937.

21. It also may be noted here that in the written statement, no objection was taken that this document was invalid, because of non‑execution of it by both the parties. Mr. Khondkar has contended that this question is a question of law, and that this can be raised in second appeal. In support of this contention, he has referred to the cases in Connecticut Fire Insurance Company and Kavanagh (1892 A C 473) ; Mongal Muchi v Abu Musa Ahmad Mustafa and others ((1957) 9 D L R 5 7) and Chaudhri Satgur Prasad v. Lala Roy Koshore Lal and others (24 C W N (P C) 394).

22. Attention has been drawn to the following observations of their Lordships of Privy Council in the case in 1892 A C 473 "when a question of law is raised for the first time in a Court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea." The same principle was also followed in the case in (1957) 9 DLR577.

23. In the case in 24 C W N 394, the question was whether the . possession of deceased coparcener's widow of a certain joint family property was adverse to the surviving coparcener or only in lieu of her maintenance for life. It was held by their Lordships of the Privy Council that the question was in reality one of legal inference from documents and not a finding of fact. This case has no bearing on the case, as the question for decision in that was entirely different from the question raised in this case at this stage. The question raised here is that the kabuliyat Exh.4 was not a valid document and was not admissible in evidence as it was not executed by both the parties. This question cannot be decided without taking evidence whether plaintiffs or any of the plaintiffs did execute it. A question of law which necessitates investigation into facts cannot be raised for the first time in second appeal. This view is supported by the case in 1892 A C 473 to which reference has already been made by Mr. Khondkar. It has also been observed in that case "The expediency of adopting that course may be doubted, when the plea cannot be disposed of without deciding nice questions of fact, in considering which the Court of ultimate review is placed in a much less advantageous position than the Courts below. But their Lordships have no hesitation in holding that the course ought not, in any case, to be followed, unless the Court is satisfied that the evidence upon which they are asked to decide establishes beyond doubt that the facts, if fully investigated, would have supported the new plea."

24. The same principle has been followed in the case of the Official Liquidator of M. E. Moola Sons Ltd. v. Perin R. Burjorjee (A I R 1932 P C 118).

25. In the Full Beach decision in the case of Kobbad Ali alias Kohbad Ali Bopari and others v. Abdul Rashid and others (P L D 1961 Dacca 638), it has been observed that the question of validity of a heba on the ground of want of sufficient proof of the ingredients of a valid heba under the Muhammadan Law could not be raised for the first time in second appeal.

26. In the case of Abdul Mannan Sheikh and another v. Lal Mamud and others ((1957) 9 D L R 577) it has been laid down that a point which requires investigation into the facts cannot be raised for the first time in second appeal. The question that the kabuliyat Exh. 4 was not executed by both the parties and that as such it is not a valid document cannot be entertained at this stage.

27. It has been next contended by Mr. Khondkar that Pande Ali Mia did not acquire any title in the suit land on the basis of mirashi ejera patta in his favour as it was not executed by plaintiffs Ramesh Chandra Roy, Broja Raman Roy, Radhapada Roy and Sonatan Behari Roy. Mr. Khondkar has contended that Radha Raman Roy, who is one of the plaintiffs executed this patta as attorney on behalf of Ramesh Chandra Roy, Broja Raman Roy and Radhapada Roy but that he had no power‑of‑attorney on their behalf, and that Sasadhar Roy who executed the patta on behalf of Sonatan Behari Roy had no power of attorney on behalf of Sonatan.

28. It has also been contended that by the patta Exh. 1 in favour of Md. Pande Ali Mia, there was no transfer of any right to enjoy property and as such no lease was created under section 105 of the Transfer of Property Act. The relevant portion of section 105 of the Transfer of Property Act is to the following effect "A lease of immovable property, is a transfer of a right to enjoy such property, made for a certain time, express or implied or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms."

29. Mr. Khondkar has contended that the patta was created during the pendency of the suit and that as such by this there was no transfer of the right to enjoy any immovable property.

30. It has been further contended that the plaintiff No. 14 did not acquire any right by the kabala Exh. 3, from plaintiffs 1‑12 as Sasadhar had no power‑of‑attorney to execute it on behalf of Sonatan and as Radha Raman had no power‑of attorney to execute the kabala on behalf of Ramesh Chandra Roy, Broja Raman Roy, Radhapada Roy. It has also been contended that the registration of the patta and of the kabala was void as the powers‑of‑attorney were not executed before and authenticated by a notary public as required under section 33 of the Registration Act. Mr. Khondkar has finally contended that in the above circumstance it is to be held that plaintiffs 13 and 14 have acquired no right in the disputed property but that they have merely acquired right to champerty.

31. All these are new points without any mention in the, pleadings, any issues raised in the Courts below, and any arguments advanced before them. As the decision of they questions require evidence, these cannot be entertained in second` appeal. I may here refer to the case of The Official Liquidator of M. E. Moola Sons Ltd. v. Perin R. Burjorjee, in which their Lordships observed that the question of non‑registration of a document which required registration could not be raised for the first time in a Court of last resort. It would follow that if the question of invalid registration cannot be raised for the first time in second appeal. While the arguments were proceeding on, respondents 7 to 18 (plaintiffs 1‑12) appeared and prayed to tranpose them to the category of the appellants. Mr. Khondkar opposed the appli cation.

32. The High Court has power under section 151 of the Code of Civil Procedure to transpose a party from one category to another. This view is supported by the case of Surya Kunta Jana and others v. Tarak Nath Jana and others (A I R 1927 Cal. 37). In that case it has been observed that the High Court has ample power in the interest of justice to add parties or to transpose a party from one category to another. I would have allowed this application if it had been found that the appeal was not maintainable at the instance of the two appellants Pande Ali Mia and Kamaruddin. As the appeal is maintainable at their instance, this application is rejected as unnecessary. The appeal is allowed. The judgment and decree passed by the learned Subordinate Judge are set aside and those of the learned Munsif are restored. In the circumstances of the present case, I pass no order as to costs. Leave to appeal under Clause 15 of the Letters Patent is prayed for and is granted. s. Q./x. B. A. Appeal allowed.