P L D 1967 Dacca 128 (PLP)

MURSHED, C. J.‑This appeal raises some important but very simple questions and its genesis may be stated as follows: A suit was instituted by the plaintiff‑ appellant society for a declaration that purported claim of acquisition of the suit property by the defendant, Province of. East Pakistan, was void and illegal and for a permanent injunction restraining the defendants from taking possession of the same. The claim of the Province of East Pakistan rests upon a notification issued under sections 3 of the East Bengal State Acquisition and tenancy Act, 1950 (Act XXVIII of 1951) (hereinafter called the Act), the notification being made in the year 1956. The suit‑property constitutes a market established by the plaintiff society. The gist of the case, in which parties have joined issue, is that, under the aforesaid notification of 1956, the suit‑property had vested in the Province of East Pakistan by operation of law, as claimed by the defendant. Plaintiff's contention, on the other hand, is that the suit‑property did not so vest in the defendant, as claimed by the latter, because plaintiff is not a rent‑receiver in respect of the suit‑property within the meaning of the said Act, the notification being one by which only the estates of rent‑receivers were acquired by the said defendant. This is the main bone of contention between the parties. Defendant, however, has taken various other defences in their pleadings, but it appears that no evidence was led by the defendant with regard to such other defences taken in the written statement. It is, therefore, unnecessary for the purpose of this appeal, to recite the details of the pleadings of the parties. On the pleadings a number of issues were raised before the learned Subordinate Judge who tried the suit. The issues were formulated thus: "(1) Is the suit properly valued and stamped? (2) Is the notice under section 80, C. P. C. valid? (3) Whether the acquisition of schedule property is illegal, void and inoperative? (4) What relief if any, the plaintiff is entitled to?" The learned Subordinate Judge, on a discussion of the points involved in the aforesaid issues and the evidence led by the parties, decided them in favour of plaintiff and decreed the suit. Defendant, thereupon, preferred an appeal which was heard and disposed of by an Additional District Judge of Dacca. The learned Additional District Judge held that plaintiff was a rent- receiver and, therefore, the suit‑property had vested in the Province of East Pakistan by virtue of the aforesaid notification. He, therefore, allowed the appeal and reversed the findings arrived at by the trial Court and the decree passed by it. He, however, recorded certain other findings to which we shall refer hereafter. Against‑the judgment and decree passed by the appellate Court below this appeal has been preferred by the plaintiff. At the hearing of this appeal we were taken through the judgments pronounced by the Courts below. The main point which was mooted by parties before us is that the plaintiff is a rent‑receiver and, therefore, the suit‑property had vested in the Province of East Pakistan by virtue of the aforesaid notification. On this question one has to remember that, the notification having been made in the year 1956, one is called, upon to ascertain the nature of the ownership of the plaintiff on the date of the notification of 1956. The position, as proved by plaintiff, is that plaintiff had taken the suit‑property on transference and had raised structures on the vacant land thereof, letting out the same as shops to different shop‑keepers. This is the undoubted position. Plaintiff realised rent from such shop‑keepers, and was, therefore, in ordinary parlance, a receiver of rents. But, the question is, whether plaintiff can be described as "rent‑receiver" within the meaning of the aforesaid Act. The expression, "rent‑receiver", has been defined in section 2 (23) of the Act, which runs thus: "(23) `rent‑receiver' means a proprietor or a tenure‑holder, and includes a raiyat, an under‑raiyat or a non‑agricultural tenant whose land has been let out and also the immediate landlord of a person who holds any land free of rent in consideration of some service to be rendered, but does not include a person in respect of such of his lands, as have been let out, together with any building standing thereon and necessary adjuncts thereto, otherwise than in perpetuity." It is thus patent that letting out premises with structures on land is exempted from the definition of a rent‑receiver unless the lease is in perpetuity. It is obvious that under the scheme of the Act itself this class of persons who receive rent by letting out structures do not come within the meaning of rent‑receiver, except when the lease in respect thereof is given in perpetuity. It is, therefore, clear that plaintiff is not .a rent‑receiver in respect of the suit‑property within the meaning of the aforesaid Act. The view that we have taken in this behalf finds support in a decision of this Court in the case of Abdul Hafez v. Ashraf Ali Choudhury (17 D L R 329). Mr. Jani Alam, appearing on behalf of the respondent, has drawn our attention to a rather naive finding of the appellate Court below which runs to the following effect: "The plain fact is that Ramhari Gope has been mentioned in the Khatina Exh. C as the permanent tenure‑holder who had a rent‑receiving interest. The predecessors‑in‑interest of the plaintiffs are said to be Pabitra Kumar Sinha and Prodyut Kumar Sinha. Whoever they may be, they must have stepped into the shoes of Ramhari Gope, though it is not known how his interest devolved on these two persons. In any case the interest of Ramhari Gope who was a permanent tenure‑holder was a rent‑receiving interest. Hence the plaintiffs‑Society must also had a rent‑receiving interest in the suit lands. And this the Government has every right to acquire by virtue of the State Acquisition Act and the notification of 2nd April 1956, published thereunder. The matter really ends here." It is rather difficult to follow the logic of the aforesaid argument, Plaintiff's predecessors‑in‑interest may or may not have been rent -receivers. But, even if they had been such rent‑receivers, it does not necessarily follow that in the year 1956, long after the purchase of the said land by the plaintiff, plaintiff society itself became a rent‑receiver, although plaintiff is outside the purview of the Act as a rent‑receiver merely because plaintiff's predecessor- in‑interest was, before the relevant time, a rent‑receiver. The steriotyped phrase, "stepping into the shoes of one's predeccssor in‑interest", is a dangerous concept and has been loosely imported into an investigation in which we are now called upon to embark. The genesis of plaintiff's title before the notification of 1956 is irrelevant unless it' can be shown that on the date of the notification plaintiff's possession of the suit‑land was such as would make plaintiff a rent‑receiver within the meaning of the Act itself. Clearly enough, plaintiff cannot be so described and the mere fact that plaintiff's predecessor‑in‑interest might have been a rent‑receiver would not alter the position. In the present context, it is an irrelevant enquiry. The decision of the appellate Court below is primarily based on the aforesaid finding, which, according to us, has no substance, whatsoever. We hold that plaintiff is not a rent‑receiver within the meaning of the Act and, therefore, it must also be held that the suit property was not acquired by the Province of East Pakistan under the notification of 1956 which relates only to "rent‑receivers". Mr. Jani Alam has, in the alternative, turned to the provisions of Act V of 1952 (Prevention of Transfer of Property and Removal of Document and Records Act), 1951 which provides that with effect from the 21st of July 1951 no person shall transfer any vacant land without previous permission of the Collector in writing to that effect within any Hat or Bazar and that every such transfer made in contravention thereof shall be null and void and, furthermore, that the property so transferred would devolve on the Government. He has submitted that the suit‑properties devolved on the Government under the said Act V of 1952. It is difficult to see how this Act is at all relevant, in the context of the facts of this case, although Mr. Jani Alam has strenuously urged it in support of his contention against the appellant‑society. At the outset it would be noticed that the embargo, which has been put upon a transfer of vacant land within a Hat or a Bazar is conditioned on a transfer without a permission of the Collector in writing. Therefore, whether this Act applies or not would depend upon a decision as to whether such permission had been obtained. On this point, although there is some reference in the written statement, no evidence, whatso ever, has been led by the parties. Transference of land without permission of the Collector is a question of fact and there is a total black‑out of evidence in this behalf. The trial Court, therefore, did not advert to this question because in the trial of the suit itself the, matter was not put in issue by the defendant. The finding of the appellate Court below that the property had devolved upon the Province of East Pakistan by operation of Act V of 1952 is without any basis and has no substance, whatsoever. Lastly, Mr. Jani Alam has tried to show that the position between the parties has altered since the filing of the suit itself. He has drawn our attention to section 44 of the Act and has argued that since final publication of the compensation assessment roll within the meaning of the Act has been made, plaintiff must be taken to be a tenant within the meaning of the Act and the suit‑land, being a Hat and a Market, must automatically vest in the Provincial Government, having regard to various enactments in this behalf. The short answer to this argument is that this question was never mooted between the parties and no issue has been raised on this point and, therefore, no evidence has been led by parties. Whether the suit‑land is covered by a final publication of the compensation assessment roll within the meaning of the Act is a question of fact which calls for decision, particularly, because the publication is made area‑wise. In any event; this is a matter which is de hors the present suit. Without deciding this question, we would like to add that if there is any substance in such a contention, it can be fought out in a properly constituted contest between the parties. On the materials before us this question cannot be decided by us. We need not, therefore, embark upon a decision of this question. This disposes of all the points that were canvassed before us in this appeal. For reasons which we have set out above, we allow this appeal, set aside the judgment and decree passed by the appellate Court below and restore those awarded by the trial Court. There will be no order as to costs of this appeal. MAKSUM‑UL‑HAKIM, J.‑‑I agree. K. B. A. Appeal accepted.