P L D 1964 Dacca 320 (PLP)

CHOWDHURY, C. J.‑This appeal under clause 15 of the Letters Patent is against the judgment and decree of my learned brother Sikandar Ali, J. in Second Appeal No. 650 of 1957. It arises out of a suit for establishment of plaintiffs' title in the suit land after declaring the award given by the Bharpasha Debt Settlement Board in Miscellaneous Case No. 12 of 1944 as void and without jurisdiction and consequently not binding against the plaintiffs and for confirmation of the plaintiffs' possession in ka schedule land of the plaint or, in the alternative, for recovery of khas possession therein and for permanent injunction. Plaintiff's case, shortly stated, is as follows :‑

2. There was a howla belonging to proforma defendants Nos. 16 to 26 as recorded in Khewat No. 211 of Mouza Krishnakati. Under this howla there was a nimhowla comprising an area of 2‑42 acres of land belonging to one After Ali Biswas, prede cessor‑in‑interest of defendants Nos. 1 to 7 and Fate Ali Biswas, predecessor‑in‑interest of defendants Nos. 8 to 14, in equal share, as recorded in Khewat No.

228. Out of this nimhowla an area of 42 acres was let out to pro forma defendants 15 and 27, who were in possession of the same on the basis of the said settlement while the nimhowladars possessed the remaining portion of the land of the nimhowla in equal share. Later on, After Ali Biswas mortgaged the disputed land in usufructuary form for a term of 31 years in respect of his one acre of the nimhowla in his possession in favour of the plaintiffs by an indenture dated 14‑5‑1927. According to the stipulation in this indenture the liability for payment of the rent due to the superior landlord remained with the mortgagor After Ali Biswas. The nimhowla however, fell into arrear and the landlord obtained a decree in Rent Suit No. 34 of 1935 and in execution thereof, being Rent Execution Case No. 1839 of 1925, put up the nimhowla to sale whereon the plaintiffs auction purchased the same on 17‑12‑35 which was confirmed on 8‑2‑36 and the plaintiffs took delivery of possession through Court on 21‑7‑

36. Thereafter defendant No. 8 and the predecessor‑in‑interest of defendants Nos. 9 to 13 took settlement of one acre of land Mudafat Fate Ali in Mirash Ejara right by executing a kabuliayat in favour of the plaintiffs on 3‑4‑

40. In the meantime, the plaintiffs also purchased share of the superior howla interest in Khewat No. 211 by a kabala dated 31‑5‑

41. Sometime before, that is, on 19‑3‑44 the defendant No. 1 filed an appli cation under section 37‑A of the Bengal Agricultural Debtors Act before the Bharpasha D. S. Board, it is alleged, by falsely misrepresenting the plaintiff as benamder of the decree holder in respect of the auction purchase made by him and as a result of fraud thus practised by him upon the Board, eventually he succeeded in securing an award on 16‑12‑46 and got the auction sale set aside and got restoration of possession of the disputed one acre of land, originally belonging to After Ali Biswas, on 29‑6‑

46. Therefore, the plaintiffs filed the present suit for title on declaration that the award given by the Board was void and without jurisdiction and for con firmation of possession or, in the alternative, for recovery of pos session of the disputed land from the defendants. The suit was contested by defendant No.

1. He denied the allegations of fraud and misrepresentation and asserted that the award was a bona fide one and not open to question or challenge before the civil Court.

4. The trial Court decreed the suit holding that the plaintiff was entitled to bring a suit in the Civil Court under section 9 of the Code of Civil Procedure on the finding that the plaintiff was not benamder of the decree‑holder and that fraud was practised upon the Board by misrepresentation of the facts to the effect that the plaintiff was the benamder of the decree holder and that all processes of the Board were suppressed.

5. On appeal by the defendant, the learned Subordinate Judge, though held that no question of fraud and misrepre sentation did arise in the facts of the case armed the decision of the trial Court holding that the impugned award of the Board was valid and binding as between the debtors and creditors, who alone were necessary and proper parties in the proceeding under section 37‑A of the Bengal Agricultural Debtors Act, to which a third party auction purchaser was not a necessary party and dismissed the appeal holding that though the Board has got jurisdiction to go into the question of benami incidentally, the decision made by the Board to that effect, is liable to be challenged by the auction purchaser in the Civil Court on the view that the findings of the trial Court that the plaintiff was not the benamder of the decree‑holder had not been challenged before him.

6. On second appeal by the defendant in the High Court the learned Single Judge held that it is absolutely wrong for the lower appellate Court to hold that the finding of the trial Court to the effect that the plaintiff was not the benamder of the decree‑holder has not been challenged. According to the learned Single Judge, that is the foundation of the whole of the defence cases, as found by the D. S. Board in its award and that if it was not challenged, there was no meaning in filing an appeal before the lower appellate Court. Then the learned Single Judge proceeded to consider whether the suit as framed was maintainable inasmuch as the award made by the D. S. Board is final.

7. It appears that the learned Subordinate Judge based his decision on a Calcutta case of Tara Prasanna Choudhury and others v. Adwaita Charan Samanta and another (A I R 1948 Cal. 329), which according to him, is consistent with the proposition of law laid down by this Court in the cases of Tali Kanta Barman v. Harendra Mohan Prodhan ((1955) 7 D L R 275), and Khurshed Mia Sukani v. Nurul Hague and others ((1955) 7 D L R 385). The learned Single Judge of the High Court has pointed out in his elaborate judgment that whether the purchase, though made in the name of the stranger, was really a benami purchase by the decree‑holder, can be gone into in a proceeding under section 37‑A and if the Board finds that he is the benamder of the decree‑holder, then the existence of the preliminary requisites under sec tion 37‑A (1) is there, because under that subsection the Board is to determine under clause (c) if the property sold was in possession of the decree‑holder on or after the 20th day of December 1939, or was alienated by the decree‑holder before that date in any manner otherwise than as mentioned in that clause. Therefore, it is the fundamental element for consideration of the D. S. Board to determine, in determining whether the conditions laid down in section 37‑A are fulfilled or not for the purpose of entertaining an application under section 37‑A. It is not disputed that the property in suit, namely, then nimhowla right of After Ali Biswas was sold in execution of rent decree and it was purchased by the plaintiff. Only question is whether he is a benamder of the decree holder. The Board has found that he was benamder of the decree holder and his possession is the possession of the decree holder within the meaning of section 37‑A (1) (c) and therefore, passed an award in pursuance of which the civil Court set aside the sale and restored the defendant No. 1 to possession. This finding of the Board was completely within its jurisdiction and was necessary for determination of the question of assuming jurisdiction to entertain the application under section 37‑A of the Act and, therefore, final and cannot be challenged in civil Court.

8. It is contended before us that the finding of benami by the D. S. Board was not a proper finding and the Civil Court can go into it. In support of this contention the learned Advocate for the appellant quoted the observation of their Lordships of the Privy Council in the case of the Secretary of State, represented by the Collector of South Arcot v. Mask & Co. (44 C W N 709, 716 (P C)), which runs as follows :‑

"It is also well‑settled that even if jurisdiction is excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." In this connection we cannot resist the temptation of quoting what Lord Esher, M. R. said in the case of The Queen v. The Commissioners for Special Purposes of Income‑tax ((1888) 21 Q B D 313, 319), which runs as follows :‑

"When an inferior Court or Tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that Tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such Tribunal or body before it proceeds to do such things but not otherwise. There is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the Tribunal or body with a jurisdiction which includes the jurisdiction to deter mine whether the preliminary state of facts exists, as well as the jurisdiction, on finding that it does exist to proceed further or do something more. When the Legislature are establishing such a Tribunal or body with limited jurisdiction, they also have to consider, whether there shall be any appeal from their decision for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the 'tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depend and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction."

9. In the present case under subsection (3) of section 37‑A the Board concerned had jurisdiction to determine whether the condition had been fulfilled, it being open to the Board to come to one or the other conclusion on the materials before it which decision, in our opinion, cannot be challenged in the Civil Court. Otherwise, as pointed out repeatedly there will be no end of litigation as the unsuccessful party may file on suit after another every time challenging the previous decision whether in a special tribunal or in a Court. In this view of the matter, civil Court has got no jurisdiction to entertain suit for declaration that the award obtained was null and void, particularly in view of the finding by the Court of appeal below that there is no question of fraud and fraudulent suppression of processes in the facts of the case. This is also the view taken in the case of Khurshid Aria Sukani v. Nurul Haque and others.

10. If any party is aggrieved by any decision of the Board he is to follow the remedy provided in the Bengal Agricultural Debtors Act, namely, appeal, review and revision as provided in the Act. To quote from the well known judgment of House of Lords of what Willes J., "said in" Wolverhampton New Waterworks Co. v. Hawkesford (6 C W N (Ns) 336 (1859)) approved of in the House of Lords in Neville v. London Express New Paper Limited, quoted by their Lordships of the Privy Councis in the Secretary of State represented by the Collector of South Arcot v. Mask & Co. " The question is whether the present case falls under the third class stated by Willes, J., viz., where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it . . . . . . . . with respect to that class it has always been held that the party must adopt the form of remedy given by the statute." Courts below though relied on the decision of the Calcutta case of Tara Prasonna Chowdury v. Adwaita Chandra Samanta and another, overlooked the fact that the proceeding in which that case came up before the High Court was one under the Act i.e., in revision under section 115 of Code of Civil Procedure arising out of the proceeding before the D. S. Board against the decision of the District Judge under section 40‑A of the Bengal Agricultural Debtors Act and not in a separate suit and the Special Officer decided that case on the basis of possession as contemplated in section 37‑A (2) (c) of the Act without deciding the question of title on the basis of allega tion of benami purchase. So the High Court in revision armed the decision of the Board holding that the third party auction purchaser was not necessary party to the proceeding in view of the facts and circumstances of that case observing: further that the question of benami may be incidentally gone into in a proceeding under section 37‑A of the Act to determine the character of possession as the question for consideration would be not merely whether the decree‑holder was in posses sion on the material date but whether or not he was in possession as purchaser of the property at the execution sale, even though the ostensible purchaser was somebody else. There in that case out of 6 mortgaged properties 4 were purchased by the mortgagee herself and the remaining two were purchased by her son. It was alleged that these two properties were also purchased by her in the benami of her son. The mortgagee‑creditor purchaser died leaving her husband as executor of her will in possession of all her properties. In the proceeding under section 3 7‑A of the Bengal Agricultural Debtors Act to which her son also was impleaded on the allegation that he was the benamder of his mother, the Special Officer proceeded on the basis of possession of the auction purchased properties in the hand of the legal representative of the creditor and avoided the question of benami. It was held in that case that the auction purchaser is neither a proper nor a necessary party to the proceeding and obviously any question of title as between him and the decree‑holder is outside the purview of the section. So it was decided that the son should be dismissed from proceeding altogether and that there will be an order for restoration of possession against the executor of the will of the deceased decree‑holder with regard to all the six items of properties. In that case it was not decided that the award of the Board involving the decision on the question of benami can be challenged 'in civil Court by a separate suit. The result, therefore, is that this appeal is dismissed with costs. A. S. CHOWDHURY, J.‑I agree with my Lord the Chief Justice. S. Q./K. B. A . Appeal dismissed.