MAZHAR ALI Vs. HAKIMUDDIN

JUDGEMENT

(1.) This is an appeal by the plaintiff against the judgment of a Single Judge of this Court affirming the appellate judgment of the Subordinate Judge of Purnea and dismissing the plaintiff's suit for declaration of title and recovery of possession of 13 bighas 19 khatas and 4 dhurs of land in khatas Nos. 51 and 69 situate in mauza Fulhari. Police Station Kishanganj. District Purnea.

(2.) The plaintiff's case was that ne had obtained raiyati settlement of the said lands from the Padhoo Mian (a co-sharer patnidar) by a registered deed dated the 23rd June, 1943. He further stated that though the said settlement was for a period of five years only, which would ordinarily have expired on the 23rd June, 1948. nevertheless the legislature intervened and passed the Bihar Tenancy (Amendment) Act, 1947 (Rihar Act XXIII of 1947), by virtue of which a new Section 21 A was inserted in the Bihar Tenancy Act (hereinafter referred to as the Act) The plaintiff claims to have obtained occupancy status by virtue of that amendment and hence he was Not liable to eviction. The defendants' plea was that after the expiry of the said settlement the plaintiff himself gave up possession of the said lands which were taken in khas possession by the then landlords (defendants 4 and 5) who subsequently settled the same with defendants 1 to 3.

(3.) On the pleadings of the parties, then fore, the main issue for considerati on was whether the plaintiff gave up possession of the suit lands (issue No. 5) after the expiry of the settlement with him by Padhoo Mian in 1943, and if the story that he gave up possesion is not believed, whether the plaintiff could claim occupancy status by virtue of Section ?1-A of the Act. The original Court, namely, the Munsif, 2nd Court, Kishanganj. disbelieved she defendants' contention of the plaintiff giving up his possession and defendants 1 to 3 obtaining possession of the lands and held that the plaintiff had proved his possession from the date of the settlement, namely. 1943. till the date of the commencement of the suit. He further held that as the plaintiff was "undisputedly a settled raivat of the village" he acquired or cupancy rights and hence decreed his claim. On appeal, however, the learned Subordinate Judge was of the opinion that the plaintiff was in possession till 1358 Fasli (1951) but that the evidence about his possession thereafter, till due date of the filing of the suit, wass not satisfactory. He adversely commented on the trial court's observation that the status of the plaintiff as a settled raiyat of the village was act disputed and observed that there was no evidence to show that the plaintiff was a settled raiyal, hence he could not gel the benefit of Section 21 of the Act. But the learned Subordinate Judge was fully conscious that if Section 21-A of the Act be held to apply, the plaintiff would undoubtedly get occupancy rights by virtue of that section. But as Counsel for the parties could not enlighten him about the exact date on which the Amending Act of 1947 was brought into force he thought that he could not apply the provisions of Section 21-A in favour of the plaintiff. The learned Subordinate Judge had obviously shirked his responsibility Once an Act is placed on the statute book, the court cannot leave it to the counsel for the parties to point out to it the appropriate notification by which the Act was brought into force, as if it were a simple question of fact, ami on their in ability to supply him that information it cannot dismiss the plaintiff's suit. The court is expected to take judicial notice of all gazette notifications and it should have made a further probe into the matter and found out the date on which the Amending Act came into force and then examined whether Section 21-A of the Act would be of any help to the plaintiff.