DHIRENDRA NATH BOSE Vs. SUSHIL KUMAR SAFUI

JUDGEMENT

(1.) THE first question that arises for consideration in this appeal is whether in the face of the provisions of section 46 of the West Bengal Estates Acquisition Act, 1953 the Civil Court had jurisdiction to entertain this suit. If the answer to that question be in the affirmative, we have to consider another question namely, whether the decree of the trial court affirmed by the appeal count decreeing the plaintiff's suit and giving him a declaration that he has get tenancy right in the suit land under defendants Nos. 1 to 7 and 10 is liable to be set aside or modified in this second appeal. Section 46 of the West Bengal Estates Acquisition Act is in these words :-

(2.) BEFORE us it is admitted and apparently it was admitted in the courts below that an order was made under sub-section (1) of section 39 directing the preparation or revision of the record-of-rights in respect of the district where the suit land lies, before the suit was instituted. In order then to determine whether the provisions of section 46 constitutes a bar to the entertainment of the suit by the Civil Court, we have to decide the further question whether the present suit is one "for the determination of rent or determination of the status of any tenant or the incidents of any tenancy to which the record-of-rights relates. " Turning to the plaint on which this suit was instituted, we find that the plaintiff averred that he had been in possession of the suit land as a tenant under the defendant since the year 1356, that a new settlement was proposed in 1359 whereby it was agreed that the defendant would grant a permanent lease but no permanent lease had actually been granted, that the defendant has been trying to oust the plaintiff forcibly though the plaintiff has valuable fish, cultivation, Golaghat, Tube-well etc. in the property, that the defendant wrote several letters to the plaintiff asking him to vacate the property on several dates and the plaintiff gave replies to those letters. In the prayer portion the relief prayed for is in these words:

(3.) THERE was an amendment of the plaint which is not of much importance for our present purpose. The main defense taken in the written statement was that the property in suit was wholly a Jalkar and was settled by the landlords first to one Khagendra Nath Singh, and then with the plaintiff's father Dhirendra Nath Sapui for 1356 B. S. and again for 1357 B. S. as a Jalkar, that on the death of the plaintiff's father, it was settled with the plaintiff for 1358, 1359, 1360 and 1361 B. S. each time for one year only after the expiration of the settlement of the preceding year, for the purpose of rearing and catching fish without any right to soil or sub-soil, that the defendants had served on the plaintiff a notice asking him to vacate and leave the property in suit in complete khas possession of the defendants on the expiry of the settlement ending in Magh, 1361, B. S. There was also a denial of an agreement to grant permanent lease of the disputed Jalkar to the plaintiff.