P L D 1958 Dacca 486 (PLP)

2. The defence of the defendant is that the suit is barred by waiver, acquiescence, estoppel and res judicata, that the Civil Court has no jurisdiction to entertain this suit in view of the pro visions of the Bengal Agricultural Debtors Act, that the award is valid, that no summons was suppressed and no fraud was com mitted as alleged by the plaintiffs ; that the kabala and the ekrar nama constituted a debt and, as such, the Board had jurisdiction, that there was a bond decree against the defendant and the kabala was executed as a security by way of a mortgage and that the defendant had no knowledge of the alleged Partition Suit and the Execution Case.

3. The Trial Court held that as there was appeal and revision, the suit was barred by estoppel and res judicata ; that no fraud was committed; that there was no collusion, as alleged by the plaintiffs ; that the Board had jurisdiction ; that the award was valid and that the transaction evidenced by the kabala and ekrar nama was a mortgage and, in this view of the matter, dismissed the suit. On appeal by the plaintiffs, the Appellate Court held that the summons of the D. S. Board was served on the plaintiffs and no fraud was committed; that Exh. A, an ekrarnama, dated the 6th Poush, 1337 B. S., corresponding to 22‑12‑30, was genuine; that as Exh. I kabala and Exh. A could not create a debt, as the contract to recovery was not embodied in the deed of sale pro vided by section 58 (c) of the T. P. Act and as the defendant did not admit any debt in column 9 of his application, Exh. 3, before the D. S. Board, the Board had no jurisdiction to entertain the application and pass an award and, in this view of the matter, it decreed the suit. Hence the present appeal by the defendant.

4. The only point involved in this case is whether the D. S. Board had jurisdiction to entertain the application under section 8 of the Bengal Agricultural Debtors Act. The lower Appellate Court held that the Board had no jurisdiction to entertain the application and pass an award, as the kabala and the ekrarnama contravene the provision of section 58 (c) of the T. P. Act and as the applicant denied liability in column nine of the application, though it held that there was no fraud and collusion, as alleged by the plaintiffs.

5. As regards the 1st branch of the reasoning of the lower Appellate Court, I think it is not sound and cannot be maintained The Board has got jurisdiction to decide whether the transactions evidenced by the patta and the ekrarnama is a debt or not. Now reference made to the case of Yakub Ali v. Arabjan Bibi (P L D 1954 Dacca 113), where in it has been held :‑ "As regards the merits of the present case ; Ormond, J., in his order of reference, after citing the proviso to section 58 (c) of the Transfer of Property Act, under which no transaction shall be deemed to be a mortgage unless the condition is embo died in the document which purports to effect a sale, points out that the Bengal Agricultural Debtors Act does not exclude the applicability of the Transfer of Property Act to cases before the Board and that its decision in this case offends against section 58 (c) of that Act; but, in our opinion, if the decision _' is wrong on facts or in law the remedy open to the aggrieved party is that provided for by the Special Act. This is clear from the observation we have quoted from 20 I A 165 and 25 I A

151. The appellant could, therefore, pursue the only remedy provided in the Act and not file a suit".

6. As to the 2nd branch, it appears that the lower Appellate Court relied on the case of Haji Moharam Ali v. Munsar Ali (P L D 1952 Dacca 102), wherein it has been held:‑ "As for section 18 of the Act, the Board has no doubt power to decide about the existence of debt ; but for that section to apply there must be a doubt or dispute about the existence of a debt; whereas in the present case there is neither a doubt nor a dispute. According to both sides, there was no debt on the date of the application. As stated already, there never was as far as the present appellant is concerned ; and with regard to the respondent there was a debt once, but it was wiped out. Therefore, in effect, what was asked for by the applicant before the Board was a declaration that the transaction was a mortgage by conditional sale and not a sale out and out. We have not been shown any provision of the Act under which the Board can give such declaration which does not involve the settle ment of a debt. It may be that if the applicant had admitted the subsistence of the debt treating the transaction as a mort gage and the creditor had come forward with the case that it was a sale out and out, the Board in settling the debt could have dealt with the question whether the transaction was a mortgage .or a sale. But, as far as the transaction in question is concerned, we think the Board had no power to give a decla ration of title ; for, the existence of a debt is sine qua non for the assumption of jurisdiction by the Board". This view has also been followed in the case of Yakub Ali v. Arab jan Bibi, wherein it has been further held:‑ "Therefore, whatever powers the Board has under that Act can be exercised by it alone and in view of our conclusion that it has jurisdiction to decide if there is a liability at all, it alone can determine that question and not the Civil Court. The Civil Court can interfere only if the allegation is that fraud was practised on the Board or it was not lawfully constituted or it had no territorial or fiscal jurisdiction or such other questions which affect its jurisdiction arise, but regarding decisions in matters within its jurisdiction a suit does not seem to lie".

7. From the aforesaid cases; 'it appears that the Board will have no jurisdiction when there is no debt but wilt have when there is a debt or dispute or doubt about the existence of a debt. So, the cross or the word nil in column 9 is not the only criterion. to determine the existence of debt but the application as a whole i.e. it is not the negation in column 9 only but negation in the application which takes away the jurisdiction of the Board.

8. In this case, it appears from the application that though in column 9 of the application under section 8 of the Bengal Agricultural Debtors Act, the applicant stated that there was no debt but subsequently in the same application the applicant while giving the history of the debt prayed before the Board for determination of the debt and for instalments, if, in the decision of the Board, debt be found due, thereby controlling the statement in column 9, though in the submission the debt was satisfied by use and occupation. The Board, in determination of 'the debt, decided that the applicant was indebted to the creditor to the extent of Rs. 142‑12‑0 and passed an award to that effect, which sA1o\r,~ that there was a doubt or dispute about the existence of the dent and the Board was called upon to decide. Hence, in my opinion, the Board had jurisdiction to entertain the application under section 8 and the Civil Court has no jurisdiction to entertain the present suit.

9. Another point urged is that the present case is not such a one over which the Board had no initial jurisdiction but a one over which it had initial jurisdiction in view of the debtor's case that the transaction, as evidenced by the ekrarnama and the patta, was a debt, as held in P L D 1954 Dacca 113 and that the plaintiffs having taken recourse to the procedure as prescribed by the B. A. D. Act by preferring an appeal and thereafter a revision by the debtor, now it does not lie in the mouth of the plaintiffs to say that the Board has no jurisdiction and, in support of this contention, reliance has been made on the case of Ledgard and another (defendants) v. Bull. (plaintiff) (I L R 9 All.191 (P. C.)). In view of my decision on the previous point, I express no opinion on this point.

10. In the result, the appeal is allowed with costs. The judgment and decree of the lower Appellate Court are set aside and those of the Trial Court are restored. Z. A. s. Appeal allowed.