BASANTA KUMAR BISWAS Vs. PROSONNA KUMAR GUHA

JUDGEMENT

(1.) In my opinion, the contention of Mr. Majumdar on behalf of the appellants is right in principle and there is not enough in the language of the particular judgment and decree before me to prevent me from giving effect to what I consider to be the justice of the matter. This is a case in which the Collector took action under the recent Statute Act 5 (B.C.) of 1920, the Bengal Alluvial Lands Act in respect of a certain chur. Under that Act, where the Collector thinks that a dispute is likely to cause a breach of the peace, he may at once attach the land and take proper steps to refer the matters of the different claimants to the civil Court. By Section 5, when the survey and map referred to in Section 4 have been completed, the Collector shall as soon as possible pass an order making a reference to the principal civil Court of original jurisdiction in the district for a decision as to what person has a title to the land and shall state in such order the names of the parties whom he has reason to believe to be claimants to the said land. Thereupon, by Sub-section (2) of the same section, the civil Court may pro. ceed to determine the matter. It shall issue notices to all the claimants mentioned in the reference and general notices calling upon all other persons claiming interest in the land to appear and Ale statements of their claims. The Court shall also determine which of the claimants has the right to begin at the hearing of the reference. The proceeding is to be deemed to be a suit and the Court has to make such order as it thinks fit with regard to costs including such court-fees as are payable under the Court-fees Act on a plaint in a suit for the determination of the title to land. Whenever the Court makes an order, it is required to certify to the Collector its decision and the Collector by Section 6 shall thereupon put the parson stated in such order to be entitled to the land in possession thereof.

(2.) In my opinion, the procedure which is contemplated by this statute is a proceduro under which the civil Court is to have before it a number of persons who are all claimants to the land or, as Sub-section (2) persons claiming interest in the land." The different parties, although one of them only can begin, are really all in the position of plaintiffs and I see that the learned Subordinate Judge in this case has required those persons who have succeeded before him to pay court-fee upon the market value of the land as though it were a suit for possession of land.

(3.) Now, what the civil Court has to do is to determine the matter; in other words, to give a decision as to what person has a title to the land; and it is to be noticed that when the Court gives its decision the Collector is to put the person stated in such order to be entitled to the land in possession thereof. What then, is the function of the civil Court ? It is to find out which of the claimants is entitled to the land. It is no doubt true that in civil Courts we are very familiar with the distinction between title" and possession." A person may have title and another person may have possession. A person's title may come to an end by reason of his lack of possession and so forth. Bat when I consider the general scope of this Act which is an Act to afford affective machinery for preventing a breach of the peace, it is quite clear that when the statute speaks of finding out the person entitled to the land it means not only that you are to find out a person with the general title but you are to find out who is the person who is entitled to possession. The word "title" in itself includes the right to possession though no doubt different people may have different title in the same land and there may be room for distinction between one use of the word "title" and another. But, for the present purpose, the civil Court has to find out what parson has title to the land including, in particular, what person has the right to possession of it. it seams to me that while it is quite true [that the Court is to declare its opinion as to the persons who are entitled to possession, it is not intended that the Court should do more. It may declare, for example, that so and so is the landlord having the full general title to the property and that so and so is the tenant having the immediate right to possession under the landlord. In that case, after the Court has declared its opinion, it is for the Collector to proceed accordingly. The land is in the possession of the law by reason that it is in the possession of the Collector under the statute. The Collector is not a party before the civil Court and the duty of the Collector to give possession to the party declared to be entitled is a duty imposed upon him by Section 6 and it is not a duty imposed upon him by the order of the civil Court. It is in this last respect that the learned Subordinate Judge here has not been quite clear in his mode of thinking. It is not altogether surprising as this is the first case, I understand, under the Act of 1920. It is quite true that being accustomed to the usual language employed in suits for possession after declaration of title, he has expressed himself as though he is giving a direction to the Collector as to what he is to do. But when I come to look at the substance of the matter, I find that he says:, The title of the several party of claimants of the different sets shall be declared and they shall be placed in possession of the lands as determined.