Subodh Gopal Bose Vs. Brojendra Kishore Roy - Court Judgment

K.S. Das Gupta, J.

1. The .52 acre of land for which the present litigation was started by the respondent more than 15 years ago lies in mouza Chandpur in the suburbs of Calcutta. While the greater portion of this mouza is included in a revenue paying estate, touzi No. 56 of the 24 Parganas Collaborate, lands included in several other touzis including touzi No. 6 of the 24 Parganas Collectorate also lie in this mouza. The lands of Touzi No. 6 that are included in this mouza are, according to the Thak Survey Map of the mouza, shown in seven chaks numbered therein as 5, 11, 19, 20, 22, 24 and 25.

2. The question that still remains for decision in the litigation is whether the land in dispute shown in C. S. map as plot No. 901 of mouza Chandpur is included in Touzi No. 6. The appellant before us having purchased Touzi No. 6 at a sale for arrears of revenue issued notice to annul the defendant's tenancy in this land on the averment that this land lay within that Touzi and brought the suit for declaration of his title and for recovery of possession.

3. The defendant set up a two-fold defence: (i) that the land in dispute was not included within Touzi No. 6; and (ii) that his interest was protected under the provisions of Section 37 of Act 11 of 1859, as it then stood.

4. The trial Court rejected the defence that the land was protected under Section 37, Land Revenue Sales Act but held that the plaintiff had failed to prove that the land; lay within Touzi No. 6. It is necessary to mention here that the c. s. khatian contained an entry showing that this land c. s. plot No. 901 of mouza Chandpur was within touzi No. 6. In the remarks column of the khatian there was mention of a potta, registered on 27-2-1922. The plaintiff relied on the statutory presumption of correctness of the settlement entry in so far as it recorded that the land was included within Touzi No. 6. The trial Judge, however, held that there was no such presumption of correctness of the entry in the settlement khatian as regards the land appertaining to Touzi No. 6, and on a consideration of the other evidence he held, as indicated above, that the plaintiff had failed to prove that the land lay within Touzi No. 6.

5. Mention may also be made here of the fact that, as prayed for by the defendant, the trial Court appointed a commissioner to superpose the thak map of mouza Chandpur on the C. S. map to ascertain whether the land lay within any of the chaks. When, however, the commissioner asked for permission of the Court to go to the locality for local investigation this was opposed by both the plaintiff and the defendant and no local investigation did take place. The learned trial Judge was accordingly of opinion that

'this relaying of plot No. 901 by superposing the thak map on the c.s. map is no correct relaying on which the defendant can rely and that the dag No. 901 falls outside the Touzi No. 6.'

6. On appeal by the plaintiff, the learned Additional District Judge held that there was a presumption of correctness attaching to the entry in the settlement khatian that the land appertained to Touzi No. 6, but the potta mentioned in the remarks column was with regard to some other land and did not cover the land in dispute and in view of this conclusion the learned Additional District Judge held that the presumption of correctness of the settlement record had been rebutted. On consideration of other evidence oh the record he came to the conclusion that the plaintiff had failed to prove that the land was within Touzi No. 6. In this view he dismissed the appeal, affirming the order of dismissal of the suit by the trial Court.

7. The other defence, namely, that the defendant's interest was protected under the provisions of Section 37, Land Revenue Sales Act, as it then stood, was not raised before him.

8. The present appeal which was preferred by the plaintiff against the decree passed in appeal by the learned Additional District Judge came up for hearing on 17-1-1947, before Blank and Chakravartti JJ. Their Lordships held that the Court of appeal below was wrong in assuming that the entry in the settlement record that the land appertained to Touzi No. 6 was based on the pattah mentioned in the remarks column and that the Judge was in error in thinking that the presumption of correctness of the entry in the record that the land appertained to Touzi No. 6 was rebutted by the errors discovered in the boundaries given in the patta. Their Lordships were of opinion that the presumption of correctness of the settlement entry had not been rebutted, so that the land must be held to appertain to Touzi No. 6. They allowed the appeal and decreed the plaintiff's suit.

9.-10. The defendant's appeal against this Court's decision was pending before the Supreme Court on 15-3-1950, when the West Bengal Act 7 of 1950 came into force. The appeal was disposed of by the Supreme Court by their judgment dated 17-10-1951. Their Lordships, while agreeing with the High Court's view that the first appellate Court was wrong in its view that the presumption of correctness of the entry in the settlement record that the land appertained to Touzi No. 6 stood rebutted as soon as it was shown that the patta referred to in the remarks column did not cover this land, held that this Court's conclusion that the presumption of correctness of the entry had not been rebutted was reached without a full consideration of the evidence. Their Lordships, therefore, thought it necessary that the case should go back to the first appellate Court for a proper finding on the question whether the land is within Touzi No. 6 and passed the following order:

'The records will be resubmitted to the High Court with a direction to it to send the case back to the first appellate Court for fresh, findings after reconsideration of the evidence on the lines indicated above. This will be treated as a remand by the High Court under Order 41, Rule 25, Civil P. C., that being the course the High Court ought to have pursued if it did not wish to act under Section 103 of the Code. The records will be resubmitted to the High Court by the first appellate Court within such time as the High Court may fix. The costs of the appeal here will abide the result.'

11. After the records were received back in this Court, the case was sent back to the first appellate Court for findings as directed by the Supreme Court. These findings have now been received. The parties were given ten days' time from the receipt back of the records in this Court with the findings, to file any objection which they wished to take to those findings. Certain objections have been filed by the respondent.

12. It is now our duty to determine the appeal after taking into consideration the findings received.

13. Before coming to the question whether the findings are vitiated by an error in law or procedure, it is necessary to dispose of a preliminary objection raised by Dr. Sen Gupta on behalf of the respondent. Relying on the provisions of Section 7(1), West Bengal Act 7 of 1950, Dr. Sen Gupta has contended that the appeal now before us has abated and the suit has also abated.

14. West Bengal Act 7 of 1950, which came into force on 15-3-1950, introduces a fundamental change in the law as regards the rights of purchasers at auction sales for arrears of revenue by replacing Section 37 of Act 11 of 1859 by these provisions:

'(1) The purchaser of an entire estate in the permanently settled districts of West Bengal sold under this Act for the recovery of arrears due on account of the same, shall acquire the estate free from all encumbrances which may have been imposed after the time of settlement and shall be entitled to avoid and annul all tenures, holdings and leases with the following exceptions:

(a) tenures and holdings which have been held from the time of the permanent settlement either free of rent or at a fixed rent or fixed rate of rent and

(b) (i) tenures and holdings not included in exception (a) above made, and

(ii) other leases of land whether or not for purposes connected with agriculture or horticulture, existing at the date of issue of the notification for sale of the estate under this Act:....'

15. By Section 7 of this Act, retrospective operation was sought to be given to these provisions within certain limits. Section 7 is in these words:

'(1) (a) Every suit or proceeding for the ejectment of any person from any land in pursuance of Section 37 or Section 52 of the said Act, and

(b) every appeal or application for review or revision arising out of such suit or proceeding, pending at the date of commencement of this Act shall if the suit, proceeding, appeal, or application could not have been validly instituted, preferred or made had this Act been in operation at the date of the institution, the preferring or the making thereof, abate.

(2) Every decree passed or order made, before the date of commencement of this Act, for the ejectment of any person from any land in pursuance of Section 37 or Section 52 of the said Act shall, if the decree or order could not have been validly passed or made had this Act been in operation at the date of the passing or making thereof, be void :

Provided that nothing in this section shall affect any decree or order in execution whereof the possession of the land in respect of which the decree or order was passed or made, has already been delivered before the date of commencement of this Act, (3) Whenever any suit, proceeding, appeal or application abates under Sub-section (1) or any decree or order becomes void under Sub-section (2), all fees paid under the Court-fees Act, 1870, shall be refunded to the parties by whom the same were respectively paid.'

16. Dr. Sen Gupta contends that this appeal by the plaintiff which is now before us was pending before the Supreme Court at the date of commencement of the Amendment Act and so also was the suit, and that in consequence of the provisions in Section 7(1)(a) and (b) both the appeal and the suit abated on 15-3-1950.

17. I find it difficult to agree that this appeal which had been disposed of by this Court in January, 1947 should be considered to be pending before the Supreme Court on 15-3-1950, merely because the appeal from the decree passed by this Court in second appeal was pending there. For the reasons to be presently mentioned it is not, however, necessary for me to decide this question finally.

18. To hold that the position in law is as urged by Dr. Sen Gupta and that the appeal and the suit were pending at the date of commencement of the Act and so abated by reason of the provisions of Section 7 of the Amendment Act, we have to say that the Supreme Court acted wrongly in passing the order that it did. It is not for us a Court subordinate to the Supreme Court, to say that the Supreme Court acted wrongly. We are bound in law to carry out the directions and dispose of the appeal after consideration of the finding of the first appellate Court.

19. Dr. Sen Gupta argues that the Supreme Court did not at all consider this question of abatement and that the order passed by it has only the effect of asking this Court to dispose of the appeal 'in accordance with law', after sending the case back to the first appellate Court and receiving its findings. Obviously, however, the Supreme Court could not ask us to hear the appeal again if the appeal and the suit or either of them had abated. It is certainly our duty to dispose of the appeal 'in accordance with law' but where the Supreme Court has, either expressly or by necessary implication, given its decision on any question of law, we are to proceed in accordance with that interpretation of law when disposing of the appeal 'in accordance with law'. In the present case the Supreme Court has not given any express decision on the question whether the suit or this appeal has abated by reason of the provisions of Section 7, West Bengal Act 7 of 1950. But the necessary implication of the order passed by the Supreme Court is that they have decided that there has been no such abatement.

20. We may look at the question from another point of view. It is quite clear that the contention now raised that the suit and the appeal abated on 15-3-1950, might very well have been taken before the Supreme Court. If the contention succeeded that would have beea an end of the whole litigation. In view of this, I am of opinion that this contention not only might have been put forward but ought to have been put forward before the Supreme Court. That not having been done, the respondent is debarred by the principle of res judicata from raising it now.

21. There is, therefore, no substance in the preliminary objection raised by Dr. Sen Gupta and I reject it.

22. We have, therefore, to determine the appeal after taking into consideration the findings which the first appellate Court has remitted. The finding is that 'the defendant has not been able to rebut the presumption of correctness of the record of rights and that c.s. dag No. 901 appertains to touzi No. 6.'

23. This is a finding of fact which we are bound to accept as conclusive for the purpose of the second appeal, unless it has been vitiated by any error of law or procedure within the meaning of Section 100(1), Civil P. C. That we are so bound was at first conceded by Dr. Sen Gupta, but later he withdrew this concession and contended that this finding of fact by the first appellate Court in pursuance of an order under Order 41, Rule 25, Civil P. C. can be challenged as in a First Appeal.

24. There can be no doubt that in a First Appeal, which term is used to describe an appeal from original decrees, -- the correctness of the decree can be challenged on any ground whatsoever. The position is entirely different in a Second Appeal, that is, an appeal from an appellate decree. Under Section 100 of the Code, an appeal lies from an appellate decree only on certain specified grounds. The law is well settled that in second appeal the High Court cannot modify or reverse a decree on the ground that the finding of fact is not justified by the evidence. If, however, the finding of fact is vitiated by some mistake in law, it can be challenged in second appeal. It is equally well-settled that if in coming to the finding the Judge has not considered the evidence, that is a mistake in law on which the finding can be challenged in second appeal.

25. The question now raised is whether the law is different as regards a finding of fact remitted by the Court of appeal to the High Court under the provisions of Order 41, Rule 25 of the Code. It cannot be, and is not, disputed that the fact that an order under Order 41, Rule 25 of the Code was made does not turn the appeal before us into a First Appeal. The appeal, we have to decide, remains an appeal against a decree passed in appeal. It has not become an appeal against a decree of the original Court. It seems to me absurd to say that though it remains a second appeal we should treat it for certain purposes as a First Appeal. It was contended by Dr. Sen Gupta that when Order 41, Rule 26 of the Code provides for presentation of a memorandum of objections to a finding received under Order 41, Rule 25 of the Code, by any party the word 'objections' would include objections not only on the ground of law but also on the ground that the finding was not supported by the evidence.

26. In my judgment, when the law provides that a memorandum of objections can be filed, it can only mean the memorandum of such objections that are admissible in law. The objections to a finding of fact that are admissible in second appeal must be within the limits prescribed by Section 100 of the Code and there is no reason to ignore the words of Section 100 of the Code while interpreting the words 'memorandum of objections' in Order 41, Rule 26 of the Code. It is worthwhile remembering in this connection that Order 42 of the Code, by reason of which the Rules of Order 41 become applicable to second appeals, is in these words:

'The rules of Order 41 shall apply, so far as may be to appeals from appellate decrees.'

27. The words 'so far as may be' make it clear beyond any shadow of doubt that in applying the different rules of Order 41, Civil P. C. to second appeals we have to take due notice of the limitations prescribed by Section 100 of the Code.

28. I can, therefore, find nothing in principle or in authority to support the proposition that the findings of facts received under Order 41, Rule 25, unlike other findings of facts by the first appellate Court, can be challenged in second appeal on the ground that they are not supported by evidence. There is clear authority against Dr. Sen Gupta's contention in this matter in the case of -- 'Bal Kishen v. Jasoda Kuar', 7 All 765 (FB) (A). In that case it was held by a Full Bench of the Allahabad High Court (Tyrrell J. dissenting) that the findings upon issues remanded by the High Court in second appeal cannot be challenged upon the evidence as in first appeal, but objections to these findings must be restricted to the limits within which the original pleas in second appeal are confined. That decision was followed in the case of -- 'Ram Mehr v. Palli Ram' AIR 1924 Lah 455 (B). Vivian Bose J. in the case of --'Belaji Sadashiv v. Vishnu Ganaji' AIR 1936 Nag 140 (C), came to the same conclusion as was reached by the majority in the Full Bench decision of the Allahabad High Court,

29. A decision of the Nagpur High Court, which was cited by Mr. Sen Gupta, who followed Dr. Sen Gupta on behalf of the respondent, was the case of -- 'Brijmohan Mathulal v. Chandrabhagabai' AIR 1939 Nag 173 (D). That decision, however, does not at all touch the question before us, for there the finding of fact was received by the High Court from the trial Court and not from the first appellate Court.

30. In our Court the question does not appear to have been raised in the present form. In the case of -- 'Gopal Singh v. Jhakri Rai' 12 Cal 37 (E), the question arose whether, where the first Court of appeal had admitted additional evidence, the hearing in the second Court of appeal will be treated as a first appeal so as to allow the pleaders to go into the facts. Their Lordships recorded their decision in these words :

'The second point pressed upon us is that inasmuch as the Judge in the Court below received additional evidence, this appeal ought to be treated as a first appeal, and the learned vakil ought to be at liberty to go into the facts; and in support of this argument a decision of the Madras High Court is relied upon. As at present advised we are not prepared to concur in this contention.'

31. It may be mentioned that the same view has been taken in the case of -- 'Mahomed Kamil v. Abdool Luteef 23 W. Rule 51 (F).

32. In the case of -- 'Beni Pershad Kuari v. Nand Lal Sahu' 24 Cal 98 (G), where the High Court had set aside the decree & sent the case back for decision to the first appellate Court, it was sought to be argued in the appeal from the fresh decree that was passed that this appeal was of the nature of a first appeal, should be treated as a first appeal and that findings of fact could be challenged as in a first appeal. This argument was rejected and the Court, following the decision in -- '12 Cal 37 (E)', held that the fact that evidence was taken by the first appellate Court did not make the appeal from the decree passed a first appeal and 'hidings of facts could be challenged only within the limitations imposed by Section 100 of the Code.

33. The reasoning in' these two cases is, in my judgment, wholly applicable to the case before us where findings are remitted to the High Court by the first appellate Court under Order 41, Rule 25 of the Code. Here also the appeal in the High Court continues to be a second appeal and in the absence of special provisions in law, the findings of facts, when they are before the High Court, are immune from attack, except on the ground of error of law or procedure within the meaning of Section 100 of the Code.

34. It is, therefore, necessary to consider whether the finding of fact now received from the first appellate Court is vitiated by any such error of law or procedure.

35. On this, Mr. Sen Gupta has addressed to us a two-fold argument. One argument is that in considering whether the document Ex. H and the commissioner's report and the combined map prepared by him on superimposition of the Thak map on the c. s. map rebutted the presumption of correctness of the settlement record as regards the entry that the land appertained to Touzi No. 6, the Court below had failed to consider some important circumstances. According to the commissioner's report and the case on the combined map drawn by him to show the result of superposition, c. s. Dag No. 901 of mouza Chandpur falls outside any of the Chaks of Touzi No. 6.

The learned Judge has considered this report and the combined map and has come to the conclusion that they have not displaced the presumption of correctness of the settlement record. The learned Judge has given cogent reasons for this conclusion. One of the reasons given by him is that there was no local investigation in this case and the superposition of the Thak map on the c. s. plot showed 'marked and vivid' divergence and disagreement in the mouza boundaries and that he was not satisfied about the correctness of the relay by superposition. If it were necessary for me to consider the correctness of the Judge's view, I would have no hesitation in agreeing with him that the relay in this case was wholly valueless. In my opinion, it is not, however, necessary or proper for this Court in second appeal to consider whether the Judge has assessed correctly the value of this evidence.

36. Mr. Sen Gupta has pointed out that according to the Thak map the chaks of Touzi No. 6 in Chandpur lie a good way off the northern boundary of the mouza; while according to the c. s. map the land of c. s. plot No. 901 lies at the border of the mouza, the land contiguous north being in another mouza. For myself, I would in the absence of proper materials to check the correctness of the Thak lines consider it dangerous to base a conclusion on this apparent difference in the position of the chaks of touzi No. 6 as shown in the Thak map and the position of the land in dispute as regards the distance from the mouza boundary.

In my opinion, this difference is an immaterial circumstance and even if the position had been that the learned Judge did not consider this difference, I would not have considered it a mistake in law or procedure within the meaning of Section 100 of the Code. I am satisfied, however, from the passage in the learned Judge's judgment where he mentions the statement of the plaintiff's pleader that 'the apparent difference in the size, configuration and position of the chaks in the Thak map was no guide in arriving at a conclusion that c. s. dag No. 901 did not appertain to any of these chaks' that he did consider this difference in the distance from the mouza boundary,

37. As regards the document, Ex. H Mr. Sen Gupta's complaint was that in considering this document the learned Judge did not compare the boundaries of plots 4 and 5 mentioned therein with the present boundaries of the land in dispute and other plots. The common case of both parties now is that the land in dispute was included. in this kobala, of which Ex. H is a certified copy, which was executed by the then tenant in favour of Jatindra Kumar Ghose. Jatindra sold it to Benimadhab Banerjee who in his turn sold it to the defendant. Plot No. 4 of this kobala is described as appertaining to Touzi No. 56, while Plot No. 5 is described as appertaining to Touzi No. 6. It appears from the evidence of the defendant's witnesses as well as from what the learned Judge states about the agrument before him that the defendant's case there was that the description, of Plot No. 5 as appertaining to Touzi No. 6 was a mistake and that neither Plot No. 4 nor plot No. 5 of the kobala appertained to touzi No. 6.

38. If this case succeeded, it would not matter at all to the defendant whether the land in dispute was included in Plot No. 4 or 5 of the kobala. The learned Judge, however, came to the conclusion that there was no reason to think that the description in the kobala was mistaken. He proceeded, therefore, to consider whether the land in dispute was in plot No. 4 or 5 of the kobala, and concluding that it was in Plot No. 5, he held that far from rebutting the presumption of correctness of the settlement record as regards the land appertaining to touzi No. 6, Ex. H strengthened this presumption.

39. Mr. Sen Gupta has argued that there was not a proper consideration of the boundaries and a proper consideration of the boundaries would have shown that C. S. dag No. 901 was in Plot No. 4 of the Kobala which plot is mentioned therein as appertaining to touzi No. 56. I am satisfied, however, from a perusal of the judgment that the learned Judge did carefully compare the boundaries. It is not for us to consider whether he came to a right conclusion on such comparison or not.

40. The other branch of Mr. Sen Gupta's argument was that in deciding that c. s. plot No. 901 is identical with plot No. 5 of Ext. H the Court below has wrongly construed a document of title and as construction of a document of title is a question of law we should examine the document ourselves for a proper construction of that document.

41. Quite clearly, however, this is no case of construction of a document of title. A document of title has to be construed in deciding, whether title has passed, the nature of the title that has passed, or what title has passed. Thus when the Court has to consider the terms of a document of lease for deciding whether a permanent tenancy was created or not, the Court has to construe the document. When the Court has to consider the terms to decide whether A or B became the lessee, it has to construe the document. When again the Court has to examine the terms to decide whether Black acre was included in the lease, it has to construe the document. In the present case, there is no question as regards the property which passed by the deed, nor about the nature of interest that passed, nor about the person to whom it passed. The question is whether out of the land which passed by the document, land A of the document is say Black acre, or land B of the document is White acre, or whether it is vice versa. This involves no construction of a document of title.

42. My conclusion is that the finding of fact which the Judge has sent us is not vitiated by any error of law or procedure within the meaning of Section 100 of the Code.

43. It is necessary to mention that the second defence of the defendant mentioned earlier that his interest was protected under Section 37, Land Revenue Sales Act, as it stood before the amendment, was not taken either before the Supreme Court or before us.

44. It was finally argued by Mr. Sen Gupta that in any case even though the land in dispute be within touzi No. 6 and the defendant's contention that it was protected under Section 37, Land Revenue Sales Act, as it stood before the amendment, failed, the plaintiff cannot succeed in the present litigation in view of the change in Section 37, Land Revenue Sales Act that has been effected by Section 4, West Bengal Act 7 of 1950. This depends on the question to what extent this alteration in the law will have retrospective operation. If it was necessary for me to consider this question, I would be inclined to hold that apart from the retrospective operation sought to be given by Section 7 of the Amendment Act, the Act has no retrospective operation. Section 7 gives retrospective operation of the change in law to the pending litigation by its first sub-clause and by its second sub-clause to all decrees in enjectment passed before the Act, provided possession has not been delivered in execution of such a decree. As we have already dealt with the respondent's case as regards the effect of the first sub-section of Section 7, namely, whether as a result thereof the suit or appeal abated, we do not discuss it further. As regards the second subsection, it is worth remembering that there is before us at present no decree for ejectment within the meaning of this sub-section.

45. I am clearly of opinion, however, that it is not open to this Court to consider this question raised now by Mr. Sen Gupta that as an effect of the change in Section 37, Land Revenue Sales Act by the West Bengal Act 7 of 1950, the plaintiff's suit should fail; and this for the same reasons for which I have come to the conclusion that this Court cannot consider the effect of Section 7(1) of the Act on the present litigation. To hold that Mr. Sen Gupta is right in his contention that the change in law by Section 4 of West Bengal Act 7 of 1950 has deprived the purchaser of his right to eject the tenant is tantamount to holding that the Supreme Court has passed a wrong order, --a thing which no Court in the land except the Supreme Court itself can do. The Supreme Court has, in passing the order that it did, decided by necessary implication that Section 4, West Bengal Act 7 of 1950 does not affect the present litigation. Besides, this contention might and ought to have been taken before the Supreme Court and that not having been done this matter is res judicata and the respondent is debarred from raising this contention now.

46. My conclusion, therefore, is that on the finding received from the first appellate Court we are bound to hold that the land in dispute is included in Touzi No. 6 and that the appellant, having annulled the defendant's tenancy under Section 37, Land Revenue Sales Act as it stood in 1936, is entitled to a decree declaring his title to the land and for recovery of possession by ejecting the defendant. He is also entitled to a decree for mesne profits. The amount of mesne profits will be ascertained by the trial Court for the period prior to the institution of the suit, as also for the period until the date of delivery of possession. In case the defendant agrees to the amount asked for in prayer kha of the plaint, the enquiry will be limited to the period after the institution of the suit till the delivery of possession.

47. I would, therefore, allow this appeal, set aside the decree passed by the Courts below and order that the plaintiff's suit be decreed with costs throughout.

48. No separate order is necessary on the application.

Sarkar, J.

49. I agree.