PRATUL CHANDRA CHANDA Vs. BISWANATH PANDAY

JUDGEMENT

(1.) The point in dispute between the parties lies within a very narrow compass and that dispute relates purely to a question of law. It appears that one Sukumari Debi filed an ejectment suit against her tenant Rajdhari Pandey seeking to eject him from a homestead land measuring 1 bigha 13 cottahs. Sukumari's interest- has now vested by purchase on Appellant Pratul Chandra Chanda. The decree was passed in 1939. The decree was put into execution by the original decree-holder on December 14, 1939. On June 10, 1940, there was an order in the execution case on the application of the judgment-debtor staying the execution of the decree under Section 3 of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940. The temporary Act was later on replaced by the West Bengal Non-Agricultural Tenancy Act of 1949 which came into effect on May 11, 1949. Thereafter, the stay order was vacated on September 6, 1950, on the ground that the temporary Act of 1940 was no longer in force. The execution case was dismissed on September 16, 1950, on the ground that no steps had been taken by the decree-holder. This order of dismissal was set aside on November 22, 1951 and the case was restored to file. On December 1, 1951, one Pratul Chandra Chanda, the Appellant in this Court, got himself substituted in place of the decree-holder on the strength of a purchase. In the meanwhile, the original judgment-debtor had died and his heirs were brought on the record in his place and a partial purchaser of the interest of the original tenant, namely, Priyanath Ghose, was also impleaded as a judgment-debtor. Thereafter, the heirs of the original judgment-debtor, who are Respondents Nos. 1 to 5 of this appeal, filed an objection under Section 47 of the Code of Civil Procedure contending that the execution case was not maintainable in law as the original tenant had been in possession of the tenancy for long over 12 years. This contention of the judgment-debtor was upheld by the learned Munsif and an appeal being preferred by the present decree-holder, the appeal was also dismissed. So the decree-holder has preferred this second appeal.

(2.) The only point which arises for my determination in this appeal is whether by virtue of Section 88 of the "West Bengal Non-Agricultural Tenancy Act, 1949, the provisions of Sections 7 and 9 of the Act will be applicable to the incidence of this particular tenancy. It was not disputed in the courts below, nor was it disputed in this appeal, that if the provisions of Sections 7 and 9 of the Act apply to this tenancy, then the Appellant decree-holder would not have the right to execute the ejectment decree against the Respondent-judgment-debtors.

(3.) Section 88 of the West Bengal Non-Agricultural Tenancy Act, 1949, runs in the following terms: