Subodh Gopal Bose vs Ajit Kumar Haldar And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 250 of 1961

Decision Date: 7 May 1963

Coram: Bhuvneshwar P. Sinha, J.C. Shah, N. Rajagopala Ayyangar

In this matter, Subodh Gopal Bose had purchased a touzi under the Bengal Land Revenue Sales Act of 1859 and thereafter instituted a suit for ejectment and recovery of possession against Ajit Kumar Haldar and others. The trial court rendered a decree in favour of the plaintiff, and the aggrieved respondents filed an appeal before the High Court. While the appeal remained pending, the Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950, came into force on 15 March 1950. The High Court examined whether the respondents’ interest in the land constituted a tenure that existed at the date of issuance of the sale notification, as required by clause b (1) of section 37 of the original Act as amended by section 4 of the Amending Act. It observed that possession of the disputed land had been delivered to the appellant prior to the commencement of the Amendment but while the appeal was still under consideration. Consequently, the High Court concluded that the land fell within the protection afforded by sections 4 and 7 of the Amending Act. It allowed the appeal and directed the trial court to record an order of abatement of the suit under section 2 of the Amendment.

The appellant then contended before the Supreme Court that, after possession had been delivered, no controversy remained, and that section 4 of the Amending Act operated retrospectively. The Court held that, although section 4 appeared prima facie to be prospective, it acquired retrospective effect to the extent conferred by section 7 of the Amending Act, and therefore applied to pending litigation. Relying on the principle that an appeal constitutes a continuation of the original suit, the Court observed that the decree had not become final before the Amendment became operative. Accordingly, the suit was deemed to have abated under section 7 (1) (a) of the Amending Act, rather than under section 7 (2) as decided by the High Court. The Court further noted that it was unnecessary to examine the impact of the delivery of possession while the appeal was pending. The Amendment of 1950 was intended to provide relief to tenure holders whose tenures had not been extinguished by annulment under section 37 of the old Act before the Amendment’s commencement.

Section 4 of the Bengal Land Revenue Sales (West Bengal Amendment) Act, read together with section 7 of the same Act, provided relief even for revenue sales that had taken place before the Act became operative. Section 7 identified three distinct categories of cases. The first category comprised any suit or proceeding that was pending for ejectment at the time the Amendment came into force. The second category covered a pending appeal, a review application, or a revision application that arose from the first category and that had been filed by a plaintiff who was unsuccessful in the original suit. The third category consisted of a final decree or order that had been made for ejectment. If a decree or order had an appeal filed against it and that appeal was still pending on the commencement date of the Amendment, that decree fell within the scope of section 7(1)(b). By contrast, a decree for ejectment that had become final because no appeal was filed, or because an appeal had been decided, was covered by section 7(2). The Legislature expressly indicated that when a final decree for ejectment had been executed by delivery of possession before the Amendment took effect, such completed transactions were not to be reopened. Apart from those exceptions, any suit, appeal or proceeding that could not have been validly instituted, preferred or maintained under the provisions of the Amendment would cease to exist in accordance with sections 7(1)(a) and (b), and any decree that had become final would be rendered void under section 7(2).

The matter before the Court was Civil Appeal No 250 of 1961, arising from a judgment and decree dated 16 June 1958 of the Calcutta High Court in appeal from Original Decree No 144 of 1948. Counsel for the appellant and counsel for the respondents were present. The judgment was delivered on 7 May 1963 by the Chief Justice. The principal issue for determination was the scope and effect of sections 4 and 7 of the Bengal Land Revenue Sales (West Bengal Amendment) Act, which came into force on 15 March 1950. The suit that gave rise to this appeal had been instituted on 6 December 1945 and had proceeded through a lengthy and complicated history. The appellant, who was the plaintiff in the original suit, had instituted ejectment proceedings against the defendants on the basis that he had nullified the defendants’ interests under section 37 of the Bengal Land Revenue Sales Act (Central Act XI of 1859) by purchasing the entire revenue‑paying estate, Touzi No 6 of the 24 Parganas collectorate, at auction on 6 January 1936. Following that purchase, he obtained possession of the estate from the Collector.

In May and June of 1936 the plaintiff obtained possession of the disputed property, and thereafter, in or about June 1936, he issued the appropriate notices that annulled and avoided all intermediate interests, except those that were protected under section 37 of the Bengal Land Revenue Sales Act of 1859. The land that formed the subject of the suit was described in the plaint as Mal land belonging to Touzi No. 6 and to other Touzies, and the plaintiff sought a khas possession to the extent of his one‑sixth share, jointly with the defendants. The first defendant‑respondent contested the suit on several grounds, but the material factual contention was that the lands described in the plaint were not Mal lands as claimed by the plaintiff; rather, they had never been assessed for revenue and were not included in the Mal assets of Touzi No. 6. The defendants further asserted that the disputed lands were Brabmottar Lakheraj lands that had never formed part of the regularly assessed estate of Touzi No. 6. Consequently, the principal question of fact between the parties was whether the disputed lands constituted Mal land of Touzi No. 6 or Lakheraj land.

The learned Subordinate Judge, by his judgment and decree dated 20 April 1948, decided in favour of the plaintiff and ordered the suit for possession, with mesne profits to be ascertained later. In reaching that decision, the judge held that the land in suit was indeed Mal land of Touzi No. 6 and other Touzies, and that the defendants’ interest was not protected from annulment under section 37 of the 1859 Act. The first defendant appealed this decree to the High Court in July 1948, and the appeal remained pending when the Bengal Land Revenue Sales (West Bengal Amendment) Act of 1950 came into force.

When the appeal was listed for hearing before a Division Bench on 8 March 1954, the learned judges considered it necessary to obtain a finding on whether possession had already been delivered to the successful plaintiff in execution of the trial court’s decree before the Amending Act became operative. This enquiry was prompted by a sworn petition filed on behalf of the plaintiff during the High Court hearing, in which the plaintiff asserted that he had obtained possession on 29 March 1949, and therefore section 7 of the Amending Act did not render the appeal void. The defendant‑appellant in the High Court contested this factual contention.

The Subordinate Judge submitted a finding to the High Court stating that possession of the disputed property had indeed been delivered to the decree‑holder on 29 March 1949, as alleged by the plaintiff. The High Court accepted this finding, concluding that possession had been delivered to the decree‑holder pursuant to the trial court’s decree. The High Court then examined the effect of the proceedings at the execution stage. It was recorded that the plaintiff had applied for delivery of possession on 28 March 1949, and that the following day, on 29 March 1949, the judgment debtor…

The judgment‑debtor, who had already filed an appeal in the High Court, submitted a petition to the subordinate court requesting a one‑month period to obtain a stay order from the High Court and, in the interim, a stay of the execution process. The learned subordinate judge disposed of the petition and recorded the following order: “Judgment‑debtor files a petition praying for one month’s time to bring a stay order and for stay of process in the meantime. Heard learned lawyer. Re‑call and put up in the presence of both parties. Inform Nazir.” The High Court examined this order in great detail, referring to judgments of various High Courts, and concluded that the delivery of possession to the decree‑holder had been made without legal authority and was therefore a nullity. The High Court then turned to sections 4 and 7 of the Amending Act and held that the disputed land, being held under a permanent, rent‑free tenure (Niskar), fell within the protection afforded by those provisions. Accordingly, the High Court held that the decree issued by the Trial Court was void under section 7(2) of the Amending Act, that section 7(1)(b) did not apply, and that section 7(1)(a) did apply, thereby making the suit abated and entitling the plaintiff to a refund of the court fees. However, the Court refused to accept the contention that the defendant could also rely on section 7(1)(a) to claim that the appeal pending before the High Court had abated. Consequently, the High Court allowed the appeal, set aside both the judgment and the decree of the Trial Court, and directed the lower court to record an order of abatement of the suit and to order a refund of the court fees in favor of the plaintiff. The High Court further ordered that each party bear its own costs in both the Trial Court and the High Court proceedings.

On the present appeal, counsel for the appellant argued that the suit had been correctly instituted under section 37 of the Act XI of 1859 and that section 4 of the Amending Act, which amended section 37, should not govern the dispute for two reasons. First, the appellant maintained that possession had already been delivered to the plaintiff pursuant to the Trial Court’s decree, thereby conclusively terminating the controversy in the plaintiff’s favour. Second, the appellant asserted that section 4 was not retrospective in its terms. It is true that section 4 opens with the words “For Section 37 of the said Act, the following section shall be substituted,” followed by the present wording of the substituted section, which prima facie suggests a prospective operation. Nonetheless, when the provisions of section 7 are examined, it becomes clear, as correctly observed by the High Court, that section 7 operates retrospectively insofar as it is made applicable to litigations that were pending at the time of its commencement.

In this case, the Court noted that while the amendment to section 37 of the 1859 Act was framed as a prospective change, the effect of section 7 of the Amending Act was clearly retrospective as to pending litigations, a point that the High Court had correctly emphasized. Section 7 read in the following terms: “7. (1) (a) Every suit or proceeding for the ejectment of any person from any land in pursuance of section 37 or section 52 of the said Act, and (b) Every appeal or application for review or revision arising out of such suitor proceeding, pending at the date of commencement of this Act shall, if the suit, proceeding, appeal or application could not have been validly instituted, preferred or made had this Act been in operation at the date of the institution, the preferring or the making thereof, abate. (2) Every decree passed or order made, before the date of commencement of this Act, for the ejectment of any person from any land in pursuance of section 37 or section 52 of the said Act shall, if the decree or order could not have been validly passed or made had this Act been in operation at the date of the passing or making thereof, be void: Provided that nothing in this section shall affect any decree or order in execution whereof the possession of the land in respect of which the decree or order was passed or made, has already been delivered before the date of commencement of this Act. (3) Whenever any suit, proceeding, appeal or application abates under sub‑section (1) or any decree or order becomes void under sub‑section (2), all fees paid under the Court‑fees Act, 1870, shall be refunded to the parties by whom the same were respectively paid.” The Court observed that it was undisputed that the present suit was an ejectment suit filed under section 37 of Act XI of 1859; consequently, the first limb of section 7, namely sub‑section (1)(a), became operative. The Court further explained that sub‑section (1)(b) would not apply to the appeal that was pending before the High Court because that provision dealt only with appeals or applications arising out of suits, and the present appeal was a continuation of the original suit rather than a separate proceeding. The Court affirmed that the suit and its appeal were indeed pending at the moment the Amending Act came into force, a position well‑settled by law that an appeal is deemed a continuation of the suit from which it arises. The pivotal question, therefore, was whether the suit could have been validly instituted if the Amending Act had been operative on the date of its filing. To answer that, the Court turned to the provisions of section 4 of the Amending Act, which read: “4. For section 37 of the said Act, the following section shall be substituted, namely: – ‘37. (1) The purchaser of an entire estate in the permanently settled districts of West Bengal sold under this Act for the recovery of arrears due on account of the same, shall acquire the estate free from all encumbrances which may have been imposed after the time of settlement and shall be entitled to avoid and annul …’” The Court thus set the stage for examining whether the amendment in section 4, by altering the consequences of section 37, rendered the original suit invalid at its inception, thereby triggering the retrospective operation of section 7.

The provision in the statute declared that every tenure, holding and lease would be avoided and annulled except for two categories. The first category, identified as sub‑clause (a), comprised tenures and holdings that had been in existence since the time of the permanent settlement and that were either rent‑free or fixed at a constant rent or a fixed rate of rent. The second category, identified as sub‑clause (b), was further divided. Sub‑clause (b)(i) dealt with tenures and holdings that were not included in the first category, while sub‑clause (b)(ii) covered other leases of land, whether or not such leases were made for purposes connected with agriculture or horticulture, provided that those leases existed on the date when the notification for the sale of the estate under the Act was issued. The text of the statute then continued with a further provision, labelled (2), which explained the interpretation of the word “tenure.” Within that provision, sub‑clause (a) stated that the term “tenure” incorporated the definition of tenure contained in the Bengal Tenancy Act, 1885. The statute consequently indicated that by virtue of the amendment made to section 37(1), the plaintiff, being the purchaser of the whole estate known as Touzi No 6 and having acquired it for the purpose of recovering arrears due on that estate, obtained the estate free of all encumbrances and became entitled to avoid and annul all tenures except those specifically listed in sub‑clauses (a) and (b) of section 37(1).

In applying section 37(1)(a) to the present case, the Court observed that this sub‑clause could not be invoked because the findings established that the defendants had not succeeded in proving that any tenure existed from the time of the Permanent Settlement. However, the Court held that sub‑clause (b)(i) would be applicable where a tenure was in existence on the date of issuance of the notification authorising the sale of the estate. The High Court had found that the defendants’ property was indeed a tenure that had existed prior to 1910, and therefore the conditions of sub‑clause (b)(i) were satisfied. The Court then posed the question of the legal consequence of those findings.

The Court explained that the Amending Act of 1950 was enacted to provide relief to holders of tenures that were under proprietors whose estates had been sold under the 1869 Act, on the condition that such tenures had not been obliterated by an annulment under the old section 37, and that those annulments had become final facts before the Amending Act became effective on 15 March 1950. Section 4 of the Amending Act was interpreted to extend relief to tenure‑holders even in relation to revenue sales that occurred before that date, provided that the provisions of section 7, which gave retrospective effect to the substantive provisions of the Amending Act and substantially moderated the harshness of the old section 37, were attracted. The Court further outlined that section 7 contemplated three categories of cases: (1) a pending suit or proceeding for ejectment of any person with respect to his tenure or lease‑hold, irrespective of whether the lease was for agricultural or horticultural purposes; (2) a pending appeal, review or revision application arising out of the first category, where the appeal or application was filed by an unsuccessful plaintiff rather than an unsuccessful defendant, because the intended effect of the abatement was to prevent attacks on pre‑existing title rather than to defend such title; and (3) a final decree or order made for ejectment. The Court noted that a decree or order against which an appeal had been filed and which remained pending on the commencement date of the Act, if filed by the unsuccessful plaintiff or applicant, would fall within sub‑clause 7(1)(b); whereas a final decree that had become final because no appeal was filed, or because a filed appeal had been decided, would fall within sub‑clause 7(2). The Court then turned to consider under which of these categories the present suit should be classified.

The Court observed that an appeal which had been filed and remained pending on the date when the Amending Act commenced would fall within section 7(1)(b) if the appeal had been lodged by the plaintiff or applicant who was unsuccessful. By contrast, a decree or order for ejectment that had become final because no appeal was filed against it, or because any appeal that was filed had been finally decided, would be covered by the provisions of section 7(2). The Court further noted that if such a final decree for ejectment had been executed by delivering possession of the land in question before the Amending Act came into force, the legislature had not intended to reopen those closed transactions. Except for those situations, the Court explained that in all the categories previously described as (1) to (3), if the suit, appeal or proceeding could not have been validly instituted, preferred or made under the Amending Act, every such pending suit, appeal or application would abate pursuant to sections 7(1)(a) and 7(1)(b), and any decree would become void pursuant to section 7(2). The Court then asked under which of those categories the suit in the present case would be classified. Relying on established jurisprudence, the Court stated that a pending appeal is considered a continuation of the suit from which it arose, meaning that the suit remains pending while the appeal is under consideration. Accordingly, the Court concluded that the suit, which was pending in the High Court on the date the Amending Act became operative, fell within the scope of section 7(1)(a). The Court observed that the suit did not fall under the second category because it was not an appeal brought by an unsuccessful plaintiff, and it did not fall under the third category because the decree against the defendant had not become final as previously described. Consequently, the Court held, in partial disagreement with the High Court, that the suit pending in the High Court on appeal had abated on 15 March 1950 under section 7(1)(a) as soon as the Amending Act came into force. In view of that determination, the Court said that it was unnecessary to examine the effect of any delivery of possession that might have occurred during the pendency of the appeal in the High Court. The Court therefore concluded that the appeal failed and was dismissed, although the reasons for dismissal differed from those adopted by the High Court. Because the suit had failed solely due to the operation of the Amending Act during the ongoing litigation, the Court indicated that no order as to costs would be made by this Court. Accordingly, the appeal was dismissed and no costs were awarded to either party, reflecting the view that the underlying suit had been extinguished by the statute.