P L D 1966 Dacca 217 (PLP)

(iii) any local authority, or (b) any lease in respect of any forest‑right or rights over fisheries or Rights to minerals in any non‑agricultural land, or (c) Any land acquired under the Land Acquisition Act, 1894, or under any other law, for the use of any Department of the Central or Provincial Government; or (d) any other land in the possession of the Central or provincial Government, or (e) any land held under a public wakf or a trust for public purpose. (2) Nothing in this Act shall apply to any non‑agricultural land held by a tenant under the Central or provincial Government: Provided that the right vested in a tenant by the provision of this Act shall not be divested by the acquisition of the superior right only in the land by the Government." Mr. T. H. Khan has relied on the provision of section 85 (1) (d) of the said section. He has argued that since the suit land was requisitioned by the Province of East Pakistan and has been in the possession of an allottee of the said Province, it must be held that the Province of East Pakistan possessed the said land. He proceeded to urge that inasmuch as the application was made in respect of a land in the possession of the Provincial Government, namely, the Government of East Pakistan, the provisions of the Act would no apply thereto. On an examination of the aforesaid provision of sec tion 85, it is clear that the Act has no application in respect of any land vested in or in possession of a port authority, railway adminis tration or local authority. It is also clear that it will not apply in case of a land acquired by the Central or provincial Government under the Land. Acquisition Act, or under any other law. There is also another classification of land with regard to which the Act has no application. One such class of land is what has been described under section 85(1)(d) of the Act. Section 85(1)(d) applies only to land other than that which comes within the meaning of the other provisions of the said enactment. It is patent that this section, inter alia seeks, to exclude the operation of the Act with regard to land "in the possession of" a port authority, railway authority, local authority, or the Central or Provincial Government: The point of importance which arises is whether the expression "possession" in the aforesaid context means and includes 'constructive possession or whether it denotes actual physical possession. In the ordinary acceptation of the term "possession" the said expression would cover both constructive and physical possession. In an appropriate circumstance, it can and, in. some cases, it must mean only "physical possession" in our opinion, the term "possession", as c used in the aforesaid section, means actual "physical possession" and does not include constructive possession, namely, possession which is attributed to the Provincial Government having obtained property under requisition and having allotted the same to somebody else who has been physically possessing the land. Reverting back to the scheme of the section, it appears that the operation of the Act is excluded with regard to land which has "vested" or "is in possession of" a local authority. Similarly it is also clear that such exclusion also appertains in respect of any land "acquired" by the Central or Provincial Government and also with regard to a land "in the possession of" the said Government. "We may here usefully travel to subsection (2) of section 85 which also excludes the operation of the Act with regard to any' non-agricultural land" held by a tenant under the Central or Provincial Government". Pausing here for a moment, it stares one on the face that a land held by a tenant under the Central or provincial Government is also a land which is in the constructive. possession of the said Government. It the word "possession" as used in subsection (I) (d) means and includes both constructive and physical possession then it is obvious that subsection (2) becomes redundant. It seems to be clear to us that the word "possession" in clause (1) (d), in the, context of section 85 as a whole, as quoted above cannot but mean "physical possession'' and would exclude constructive possession. It seems that the word "possession" includes a possession howsoever obtained, irrespective of the fact whether it is obtained by acquisition, by requisition, by negotiation or in any other manner, legal or otherwise. It seems that a land in actual physical possession of the Central or provincial Government or of any local authority has been placed beyond the operation of the Act so that the advantages which it gives and the disadvantages which it imposes may not come into operation with regard to such land. The meaning of the expression "possession" in section 85 is in keep ing with the common‑sense of the provision of the said section a well as consonant to well settled principles. In this connection we may notice the case of The New Trinidad Lake Asphalt Company Limited v. The Attorney‑General (1904 Appeal Cases 415). This is a case where the "restric tive covenant" by the Crown came to be construed by the Supreme Court of Trinidad as well as the Judicial Committee of the privy Council. In the deed itself there was restrictive covenant by the Crown which affected certain land situated within 3 miles of the subject of concession given by the deed. The restrictive covenant was expressly applicable to land "which now are, or at any time during the said term or terms shall come into, in the possession of Her Majesty." In the Supreme Court of Trinidad the learned Chief Justice held the view that the word "possession" meant both constructive and physical possession. Two other Judges of the Supreme Court were of a different view and held that the aforesaid expression meant actual "physical possession" and not constructive possession as well. The Judicial Committee of the Privy Council upheld the view taken by the two dissenting Judges, namely, that the word "possession" meant physical possession in the aforesaid context. At page 421 of the report the Court observed: "The question upon which their Lordships have now to advise His Majesty is whether the view of the Chief Justice or that of Baynes, J. and Routledge, J. is right, and their Lordships are of opinion that the view expressed by the last named Judge is the correct one." In our opinion, the true import of the term "possession" in section 85 is as we have indicated above. Inasmuch as the suit land was not in "physical possession" of Government, we cannot hold that section 24 would not apply to it. Lastly Mr. T. H. Khan has contended that the learned Additional District Judge misdirected himself with regard to the appraisal of evidence in this case in coming to a finding as to whether or not the application on behalf of opposite‑parties Nos. 1 and 2 was barred by limitation. Admittedly, the require ment of law is to make an application under the aforesaid section 24 within four months from the date on which the notice under section 23 is served. In a case where, because of any act or omission of the vendor, the petitioner could not obtain knowledge of the same at the time of the transaction, he can maintain an application within 4 months from the date on which he obtained such knowledge. When the application under section 24 itself discloses that it has been made four months after the alleged date of sale, it is incumbent upon the petitioner to show that he is still within‑ the period of limitation, namely, 4 months from the date of the actual knowledge of the transaction. The learned Additional District Judge has concurred with the learned Munsif in coming to a finding that no reliance can be placed‑on the evidence led on behalf of Abdul Maleque Laskar, who is petitioner before us and who opposed the application before the Munsif. He, however, did not rely upon the evidence led on behalf‑of opposite parties Nos. 1 and

2. Taking the view that the onus in this behalf was on the present petitioner, Abdul Maleque Laskar, he had held that the application of opposite parties Nos. 1 and 2 was within the period of limitation. We think that Mr. T. H. Khan is right in contending that, having regard to the findings arrived at by the learned Additional District Judge, he was not justified in finding that the aforesaid application was not hit by the law of limitation. The learned Munsif, however, believed the evidence led on behalf of opposite‑parties Nos.1 and 2 and has given cogent reasons for arriving at the conclusion. The learned Additional District Judge rejected the evidence produced by opposite parties Nos. 1 and 2 on a ground which is untenable. He has rejected such evidence because of the fact that the name of one Serajul Huq, who was produced on their behalf, does not find any mention in the application under section

24. According to rules of pleadings, the names of witnesses are not given either in a plaint or a written statement. Such principle applies, mutatis mutandis, in case of applications and written objections, one does not normally except the name of a witness in the pleadings that are submitted to Court and to reject the evidence of a witness, not because his evidence does, not inspire any confidence but because his name does not appear in the pleading of the party which produced him, is a course which amount to a serious misdirection in the appraisal of the evidence before us. Having regard to the fact that the sale, which has rise to the present dispute has taken place 9 years ago in 1955, we do not think, we should be justified in remanding this case back to the lower appellate Court for coming to a proper finding on this point. There is sufficient evidence before us which will enable us to give such a decision. We are also conscious of the fact that the Court of first instance has fully assessed the evidence in this behalf arid according to us, has riehtly done so. Wt have ourselves also examined the evidence hardly any good reason why the evidence of Serajul Huq, led on behalf of opposite‑parties Nos. 1 and 2, should not be accepted. In this view of the matter, we hold that, in the aforesaid analysis, this contention of the learned Advocate for the petitioner cannot succeed. We now turn to a point which was rather faintly or half- heartedly argued by the learned Advocate for the petitioner and since he has insisted on a decision on this point, we give our views in this behalf. He has invited our attention to the definition of "Land". Having drawn our attention to the fact that the right given to a co‑sharer under the aforesaid section appertains to non‑agricultural land, he has referred us to the definition of "Non‑agricultural Land" under section 2 (4) of the Act which reads as follows:‑

"(4) `Non‑agricultural Land' means land which is used for purposes not connected with agriculture or horticulture and includes any land which is held on lease for purposes not connected with agriculture or horticulture irrespective of whether, it is used for any such purposes or not, but does not include‑ (a) a homestead to which the provisions of section 182 of the Bengal Tenancy Act, 1885, apply, (b) . . . . . for agricultural or horticultural purposes but is being used for purposes not connected with agriculture or horticulture without the consent either express or implied of the landlord, if the period for which such land has been so used is less than twelve years, and (c) . 2 . . . . : "Provided . .. ." He then drew our attention to subsection (5) of section 2 which reads as follows:‑ "(5) `Non‑agricultural tenant' means a person who holds non‑agricultural land under another person with the consent ‑of that person and is, or but for a special contract would be, liable to pay rent to such person for that land and also includes the successors‑in‑interest of the former but does not include any person who holds any such lands on which any premises occupied by such person are situated if such premises have been erected, or are owned, by the person to whom such occupier is, or but for a special contract would be, liable to pay rent for such occupation: He has argued that as there were structures on the land the tenant would not be non‑agricultural tenants and, therefore, rights under section 24 will not be available. A mere reading of the definition would establish that for obvious reasons Legislature has excluded the leases of structures with land but the cases of tenants of non‑agricultural land, who have erected structures thereon, are governed by the provisions of the Act. The pro visions of sections 4 and 5 would further establish this proposi tion. Sections 4 and 5 run as follows:‑

"

4. A non‑agricultural tenant may hold non‑agricultural land for‑ (a) homestead or residential purposes: (b) manufacturing or business purposes; or (c) religious or other purposes. "

5. A non‑agricultural tenant shall be deemed to hold any non‑agricultural land‑

(a) for homestead or residential purposes if such tenant is entitled, under the terms of any agreement between himself and the landlord to use or is actually using such land for homestead or residential purposes; (b) for manufacturing or business purposes if such tenant is entitled, under the terms of any agreement between himself and landlord, to use or is actually using such land for carrying on therein any commercial or industrial enterprise or any trade or business; and (c) for religious or other purposes if such tenant is entitled, under the terms of any agreement between himself and landlord, to use or is actually using such land for a religious purpose or for any purpose not connected with agriculture or horticul ture other than, (i) the purposes specified in clauses (a) and (b) and (ii) the exercise of any forest‑rights over fisheries or rights, to minerals in such land." In this case it appears from Exh. 1 (a) and from other evidence that the structures were erected by the tenants and therefore; the tenancies were governed by the Act. The result, therefore, is, that this rule is discharged with costs which we assess at three gold mohurs. ABU MD. ABDULLA, J.‑I agree. K. M. A. Rule discharged.