ISWAR GOPAL JIEU THAKUR Vs. PRATAPMAL BAGARIA

JUDGEMENT

(1.) These appeals are directed against the judgment and decree of the H.C. of Judicature at Fort William in West Bengal, confirming a decision of the President of the Calcutta Improvement Tribunal, which modified an award of the first Land Acquisition Collector of Calcutta, made under the Land Acquisition Act in respect of the acquisition of two premises, which may conveniently be referred to as Nos. 140 and141, Cotton Street.

(2.) In order to understand the points of contest between the various claimants to the compensation awarded in the case, it seems necessary to refer to certain facts showing how they came to be interested in the premises which are the subject-matter of the land acquisition proceedings. The premises belonged at one time to one Sewanarayan Kalia, and afterwards they became the property of a deity, Sree Sree Iswar Gopal Jieu Thakur, installed by Sewanarayan Kalia at Chinsurah in the district of Hooghly. Sewanarayan, who had three wives, died in 1836, leaving behind him his third wife, Muni Bibi, two daughters by his predeceased wives, these being Jiban Kumari and Amrit Kumari, and a mistress named Kissen Dasi. On 23-8-1836, these persons executed a deed of solenama which was in the nature of a family arrangement, by which the remainder of the estate of Sewanarayan (i.e., what was left after excluding the dedicated properties) was divided in the terms of his will, with the result that Muni Bibi got subject to certain conditions, among other properties, the premises described as 140, Cotton Street, and Jiban Kumari got the contiguous premises, No. 141, Cotton Street. Muni Bibi and Jiban Kumari also became the shebaits of the Thakur or deity with power to appoint their successors. On 20-1-1848, Muni Bibi by an arpannama dedicated 140, Cotton Street to the Thakur. It is recited in this deed, among other things, that on account of annual droughts and and inundation and consequent diminution in the produce of the lands, certain properties dedicated to the sewa of the deity had been sold for arrears of revenue, that

(3.) In the present appeals, we are concerned with the first two claims only, and we shall briefly state how they were dealt with by the Collector and the Cts. below. On 22-5-1935, the Collector awarded Rs. 31,740 as compensation for landlord's interests to be shared by the deity as owner and two of the Bagarias, resps. 1 and 2 in App. No. 95 in their capacity of usufructuary mtgee. A awarded a sum of Rs. 1,58,000 to the resps. 1, 2 and 3 as compensation for their rights as permanent tenants of the premises in question. Subsequently, three separate petns. of reference were filed by the three claimants against the Collector's award and the reference made by the Collector in pursuance thereof was regd. as apportionment case No. 95 of 1935 in the Ct. of the Calcutta Improvement Tribunal. Meanwhile Deosaran Singh and Ram Lakshman Singh, who had put in claims as shebaits, retired from the contest, and the President of the Tribunal appointed one Narendra Nath Rudra as the next friend of the deity to represent and protect its interests. On 31-8-1938, the President of the Tribunal gave his decision, by which he substantially upheld the award of the Collector, but modified it in one respect only. He held that the usufructuary mtge. on the basis of which resps. 1 and 2 had put in a claim, had been paid off and therefore they were not entitled to any compensation, and the whole sum of Rs. 31,740 should be paid to the deity. Resps. 1 to 3 however were held entitled to the sum of Rs. 1,58,000 as permanent tenants, on the ground that leases had been created for legal necessity and therefore were binding on the deity. He also held that the deity was not entitled to question the leases by virtue of Art. 134 (a), Limitation Act. Regarding costs, he directed that all costs incurrent on behalf of the deity should, be paid out of the compensation money lying in deposit in Ct. Two appeals were thereafter preferred to the H. C. by the two main contesting parties and ultimately both these appeals were dismissed, and the H. C. upheld the decision of the Tribunal. Subsequently, the present appeals were preferred to this Ct. the deity having obtained a certificate granting leave to appeal from the H. C. and the Bagaria resps. having obtained special leave from the P. C. to prefer a cross appeal.