RAJENDRA NATH SARKAR Vs. GOUR GOPAL GHOSH

JUDGEMENT

(1.) This appeal arises out of a suit for declaration of title, recovery of possession and for realisation of mesne profits brought by the plaintiffs-respondents. The plaintiffs' case in the plaint, in short, was that on the 28th March. 1950 he acquired the disputed property by an unregistered deed of exchange from the previous owners who had gone over to Pakistan and got possession on the strength of that exchange and that subsequently on the 13th July, 1955 the plaintiffs have obtained registered kobala from those owners. The plaintiffs further averred in the plaint that in 1362 B. S. taking advantage of their temporary absence from India the defendant dispossessed him and that in 1362 B.S. on their return from Pakistan the plaintiffs found the defendant to be in possession of the disputed plot. The plaintiffs also challenged the entry in the revisional settlement record-of-rights which had been obtained by the defendant on the basis of his possession as aforesaid. The defendant is a refugee from Pakistan just like the plaintiffs and he also sets up a case of exchange by an unregistered deed dated the 26th February, 1950, that is to say, roughly one month earlier than that of the deed of exchange relied upon by the plaintiffs and he also alleges that he entered into possession of the disputed land by virtue of that deed of exchange and had since been in possession of the disputed property and that the plaintiffs' allegation of their being dispossessed in 1362 B.S, was false. Unfortunately, the unregistered deed of exchange of either party was excluded from the evidence on the ground that it required registration and the result was an over-simplification of the controversies between the two parties because once the earlier unregistered deed of exchange asserted by the defendant was out of the field the only document at law was the registered kobala relied upon by the plaintiffs and there was no other way to the court left than to declare the plaintiffs' title, unless the suit was barred by limitation or the plaintiffs' title was barred by adverse possession by the defendant. Since the defendant asserted possession only from 1350 B.S. which was within nine years of the institution of the suit neither limitation nor adverse possession could defeat the plaintiffs' title on the basis of the registered kobala. The trial court, accordingly, decreed the suit on these findings and when the case came on appeal before the court of appeal below the appellant made grievance that the learned Munsif had wrongly rejected the deed of exchange executed in his favour by the original owners and that it was admissible under the provisions of Section 53-A of the Transfer of Property Act and once that provision was applied the defendant could not be ejected from the disputed property. The Court of appeal below discussed the provision of Section 53-A of the said Act but relied upon the ruling reported in (1945) 49 Cal WN 649, Birendra Kishore Roy v. Naruzzaman to hold that since the disputed property constituted an occupancy holding which could be registered only under Section 26-C of the Bengal Tenancy Act it could not be admitted in evidence even to prove part-performance because the proviso to Section 49 of the Registration Act, 1908, was confined only to documents which were compulsorily registrable under the Registration Act and the Transfer of Property Act and not under any other enactment such as the Bengal Tenancy Act. Upon this view he rejected the contention of the defendant that he could resist the plaintiffs' suit on the basis of Section 53-A of the said Act.

(2.) This finding of the lower appellate court has been challenged in this second appeal. When it came up before the learned single Judge (Laik, J.) the learned Judge observed that there was a conflict of opinion between the two decisions just referred to and an earlier decision of this Court in Nakul Chandra Pol-ley v. Kalipada Ghosal, reported in 42 Cal WN 630 = (AIR 1939 Cal 163) and that, accordingly, the present appeal should be dealt with by a Division Bench. It is true that the decision in (19451 49 Cal WN 649 is not a Division Bench decision but that of a single Judge. Chakravartti. J. (as he then was), but there are certain observations therein which might lead one to think that Section 49-A of the Registration Act debarred from evidence any unregistered document of transfer of an occupancy holding which was required to be registered under Section 26-C (1) of the Bengal Tenancy Act. Before entering into this question it should also be noted at once that there has been another Division Bench decision of this Court which has dealt with the specific question which is before us.--namely, Manjural Haque v. Mewajan Bibi.

(3.) Having given our anxious consideration to the question involved we are of the opinion that the decision in (1945) 49 Cal WN 649 does not really deal with the question which we are to decide and is not in conflict with the decision in 42 Cal WN 630 = (AIR 1939 Cal 163). It is curious that the decision in 42 Cal WN 630= (AIR 1939 Cal 163) was not referred to in (1945) 49 Cal WN 649. Be that as it may, it should be observed at the very beginning that though the Bengal Tenancy Act is a self-contained enactment relating to the law of landlord and tenant, it is not a complete Code as to the Jaw relating to land held by a tenant or the law relating to such tenancy. The relevant provision of the Transfer of Property Act, which is a general enactment relating to the law of transfer of immovable property in India, is Section 117 of the Transfer of Property Act which only excludes the applications to agricultural leases of the provisions of Chapter V of the Transfer of Property Act which deals with leases of immovable property. There is no provision in the Transfer of Property Act which excludes its general provisions in their application to agricultural holdings. So far as the Bengal Tenancy Act is concerned, it does neither inasmuch as its preamble says that it is an Act to amend and consolidate the law relating to the landlord and tenants. It never professes to be an exhaustive Code as to the immovable property when that is used for agricultural purposes and held by a tenant. If that be so, there is no reason why the general provisions of the Transfer of Property Act such as Section 53-A of the said Act, cannot be extended to agricultural properties or agricultural holdings, as has been held in 42 Cal WN 630 = (AIR 1939 Cal 163) as well as. If that be so, then the provision in Section 53-A of the Act which is meant to protect a defendant from eviction when he has entered into possession in part-performance of an unregistered deed of transfer should not be available to the transferee of an occupancy holding who has obtained a deed of transfer but has not got it registered, as required by Section 26-C of the Bengal Tenancy Act.