SUDHIR CHANDRA BERA Vs. CHOTA GOBINDA SHAU

JUDGEMENT

(1.) THIS is an application by the plaintiff for revision of an order staying a suit under section 46 of the West Bengal Estates Acquisition Act, 1953. In the suit the plaintiff asked for a declaration that an award by the Mahisadal Bhagchas Board in Case No. 48 of 1954-55 on the 8th January, 1955 restoring the opposite party in possession of the disputed land on a finding that he was a Bargadar in respect thereof was illegal and without jurisdiction, end that the opposite party was no more than a trespasser, and also for confirmation of possession or in the alternative, if it is found that the plaintiff is not in possession, for recovery of possession. In the body of the plaint it was undoubtedly alleged that in the record-of-rights the opposite party was entered as an occupancy Raiyat and the rent payable by him was a half share of the produce. It is further stated that this entry in the record-of-rights is wrong. The written statement of the opposite party in one place stated that the opposite party was a Bargadar and in another place it stated that he was an occupancy tenant as recorded in the record-of-rights. The question is whether the suit is one of the description given in section 46. It is necessary here to quote section 46 in extensor:

(2.) IN order that the suit may satisfy the description given in this section it must be a suit for determination of rent or a determination of the status of the tenant or the incidents of any tenancy to which the record-of-rights relates. Unless the suit is one of this description it does not matter whether an issue regarding the status of the defendant as a tenant or the incidents of his tenancy arises in the suit because the words of the second part of the section are "if any such suit, etc. " That means that the suit must be one of the description which precedes. After section 46 was amended, for the words "if any such suit or application is pending" have to be read the words "if any suit or application in which any of the aforesaid matter is in issue is pending" and this will be deemed always to have been substituted. Even after the amendment the suit has to satisfy the description given in the first part of section 46. In this connection reliance was placed on behalf of the opposite party on an unreported judgment of the Division Bench in Civil Revision Case No. 3449 of 1955 (1) (Kishori Mondal and ors. v. Sk. Bhutu Gayen) which was a suit by a tenant for a declaration of his tenancy right and their Lordships (Das Gupta and Guha, JJ.) held that this suit was one of the description given in section 46. In the present suit, however, it is not the tenant who is the plaintiff but it is the owner of the land and in the Civil Revision Case No. 3449 of 1955 (1) the tenant's prayer for a declaration of his tenancy right brought it within the description of a suit for the determination of the status of the tenant. This suit by the landlord for a declaration such as I have already outlined, which virtually repudiates the defendant's claim as a tenant or a Bargadar, can hardly be said to be one to which the description given in section 46 may rightly be applied. Then, as I have already said, if the suit is not one of that description it does not really matter that an issue regarding the determination of the status of the tenant or the incidents of his tenancy may arise. In this view of the matter the learned Judge was wrong in staying the proceeding. The order must accordingly be set aside and the Rule made absolute. I make no order as to costs.