SUBODH GOPAL BOSE Vs. SUSHIL KUMAR SEN

JUDGEMENT

(1.) The Supreme Court having decided in The State of West Bengal v. Subodh Gopal Basu,1954 SCA 65 that the amendments introduced by the Bengal Land-Revenue Sales West Bengal Amendment) Act, 1950 (West Bengal Act VII of 1950), were intra vires of the Constitution, the point for decision in all the three appeals now before us is as to what would be the nature of the order to be passed by this Court now. Although the facts are slightly different, the decision depends upon the interpretation of Section 7 of the amending Act. We would indicate in brief the relevant facts in each of the three appeals and then deal with the principles underlying and the interpretation of Section 7 of the amending Act.

(2.) This appeal arises out of a suit brought by the Plaintiff-Appellant for recovery of khas possession of certain plots described in the schedule to the plaint on declaration of the Plaintiff's title. The defence was that the lands in suit were not within the mal assets of the touzi; alternatively, the interest of the Defendant was not an encumbrance under Section 37 of Act XI of 1859. There was a further alternative defence based upon the exceptions to Section 37 of Act XI of 1859, that the tenures were protected ones under such exceptions. The suit was also claimed to be otherwise barred.

(3.) The learned subordinate judge came to the conclusion that the lands in dispute except a six-anna share of nine cottas out of the total area included did not form part of the mal assets of the touzi. The learned subordinate judge further held that the interest of the Defendants was not liable to be annulled. It was also held inter alia that the original Defendant was not a raiyat and could not claim protection from ejectment though the question of lands not forming a part of the mal assets had been decided against the Defendant. The suit was decreed in part and the title of the Plaintiff was declared to a six-anna interest in nine cottas of the lands in dispute. The rest of the claim was dismissed.