C.N. Laik, J.
1. Jejur, a village well known in the District of Hooghly for producing big people, is the seat-bed of this litigation and over about 3 bighas of land only, in which the defendant is the appellant in this second appeal. It arises out of a suit by the respondent for a declaration that the appellant is a mere Bargadar in respect of the disputed property and not a tenant, either at cash or produce rent. Relief is also claimed that the entry thereof in the record of rights is wrong and the same is not binding on the plaintiff-respondent.
2. The plaintiff's case in short was that the defendant-appellant took bhag settlement from the plaintiff and delivered bhag produce upto the year 1342 B. S. Though the defendant is a Bargadar, the G. S. record, recorded him as a korfa tenant. The entry therein that the property is liable to assessment of rent was wrong. Against such alleged wrong recording, the plaintiff filed an objection under the provisions of Section 44(1) of the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the Act). The Assistant Settlement Officer inter alia corrected the records with respect to the entry "liable to assessment of rent" and in its place, the entry "half share produce" was recorded. The plaintiff's appeal to the Tribunal under the provisions of Section 44(3) of the Act, met with dismissal on the ground that the appeal was barred by time.
3. The defence in short was that the defendant-appellant was a tenant and not a Bargadar; that he had been all along in possession as such, and the entries in the record of rights are correct.
4. The learned Munsif on consideration of the evidence, both oral and documentary, dismissed the suit. It was found inter alia that the plaintiff though his title is admitted, failed to prove the bhag settlement. It was observed that there was no document creating the tenancy of the defendant and that the evidence as to the same was not satisfactory. As the plaintiff-respondent could not rebut the presumption of the correctness of the entries in the record of rights and as he could not prove the bhag settlement in favour of the defendant-appellant, the suit failed before him.
5. The plaintiff having appealed, the Court of appeal below allowed the same, principally on three grounds. The main ground was that the defendant could not prove any foundation for the correctness of the entry as a tenant in the record of rights, relying on two decisions of this Court, namely, Kiran Chandra v. Srinath Chakrabarty and Debendra Kumar v. Pramada Kanta Lahiry
. Therefore, the Appellate Court held that the entry was erroneous, Consequently the defendant was found to be the Bargadar. The second ground was that the adverse inference drawn by the learned Munsif against the plaintiff for non-production of the bhag receipts was held to be wrong. According to the Court of Appeal below, the specific and requisite provision of the West Bengal Land Reforms Act, 1955 which was held to be mandatory by the learned Munsif, is erroneous; because the fact that the said provision did not come into force, had been over-looked by the learned Munsif. Lastly, on the statement appearing in the judgment of the Assistant Settlement Officer, Ex. 4, where it was recorded that the defendant-appellant paid half share of the produce in respect of the disputed property, the suit should be decreed.
The learned Additional District Judge, therefore, allowed the appeal and set aside the judgment and decree of the learned Munsif against which the present second appeal has been preferred by the defendant.
6. Mr. Murari Mohan Dutt, the learned advocate appearing in support of the appeal, contended that each and every reasoning given by the learned Additional District Judge was wrong. His first contention was that the onus was wrongly placed on his client, the defendant-appellant, to prove the foundation or basis of the correctness of the entries in the record of rights standing in his clent's favour. To appreciate the said point and to deal with the said two decisions, referred to above by the lower appellate Court, it would be necessary to refer to a few other decisions of this Court on the point, not referred to by the learned Additional District Judge which in my opinion, would not only clarify the position but would be necessary for the decision of the case.
7. In the said decision of Kiran Chandra referred to in the judgment appealed against, the following portion occurs towards the end of the Judgment:
" . . . When the matter is investigated by the Civil Court and the parties adduce their evidence, on the point in controversy, the entry loses the weight when the evidence discloses no foundation for it."
Though it is a Bench decision of this Court, I must say that the expression is not happy and It requires explanation particularly in view of other Bench decisions of this Court. The other Bench decision of this Court, in the case of Lakhi Nath v. Nabadwip though reported late but is earlier in point of time. This case has not, however, been considered the case of Kiran Chandra . It was held in the case of Lakhi Nath
that the party challenging the entry in the record of rights must adduce evidence to rebut the presumption of its correctness. Of course, it has been noticed in this decision and an observation has also been made to the effect that the procedure adopted, did not support the entry as finally published but I think that the said observation is of no moment for the principle ultimately laid down in the said decision. This case was considered by another Bench decision of this Court in the case of Adu Mondal v. Hiralal Mistry where it was held that the proposition as to the other matters referred to in the said decision of Lakhi Nath would not be taken as one of universal application.
8. Chief Justice Rankin presiding in a Letters Patent Appeal Bench, a year thereafter, in the case of Abdul v. Yakub held, upsetting the judgment of Mitter, J., that the party which challenged the entry in the record of rights, was to show in one way or the other, that the entry was wrong. The decisions prior to this were not referred to in this case. In the meantime in the Bench decision in the case of Madhab Chandra v. Tilottama, the principle has been laid down to the effect that it is only for the party, on whose behalf the record of right has been made, to show that the entry is still correct. In another Bench decision in the case of Girish Chandra Dutt v, Girish Chandra Mali their Lordships entertained the contention that there was no evidence before the Settlement Officer to justify him in recording the entry.
9. The judgment of Chief Justice Rankin was sought to be distinguished by S.N. Guha, J., sitting singly in the case of Majidan Bewa v. Basanta Kumar . But really it Is not a distinction; as his Lordship had to and did in fact accept the principle as laid down by Chief Justice Rankin. To complete the discussion, I may refer to the Bench decision of this Court in the case of Debendra Kumar which has been relied on by the Court of Appeal
below, in the instant appeal, in which the observation appears to the effect that, if a foundation of a settlement record of rights is found to be rotten then the presumption arising from the record of rights would be more than rebutted. It is curious, that this Bench has not considered any of the said earlier reported Bench decisions. I am of the view that the principle laid (Town in Debendra Kumar's case can be distinguished on the facts of the very case, in which the dakhillas, filed in support of the correctness of the entries, were held to be not genuine and on that ground their Lordships held that the presumption of correctness of the entries in the record of rights was rebutted. Again, it is unfortunate that R.C. Mitter J., sitting singly in the case of Kanto Mohan Mallick v. Makhan Santra, 39 Cal WN 277 made a sweeping observation to the effect that the observation made in the case reported in Brojendra v. Mohim did not militate against the principles laid down in the said decision of Kiran Chandra .
10. Roxburgh J, in a later decision in the case of Rani Harshamukhi v. Khitindra Deb Roy, which has been
strongly relied on by Mr. Dutt, in support of his contention, explained the decision in the case of Kiran Chandra . His
Lordship held that the remark therein was not to be read as laying down that a party relying on the presumption of the record of rights was bound to lead evidence in support of the entry.
11. Mr. Banerjee, the learned Advocate, appearing on behalf of the respondent, has also cited before me the decision of a learned single Judge in the case of Bahadur Singh v. Barkatulla, AIR 1946 Cal 450 but I do not think that the same would either help Mr. Banerjee or would go against the contention raised by Mr. Dutt One should do well to remember the decision of Sir Dinshaw Mulla J., in the Judicial Committee of the Privy Council in the case of Mahant Krishna Dayal v. Rani Bhubaneswari which has laid down in no uncertain terms that the entry in the record of rights is presumed to be correct until it is proved to be incorrect by evidence. The learned Additional District Judge was therefore wrong in relying on the said two decisions of Kiran Chandra and Debendra Kumar, 37 Cal WN 810: (AIR 1988 Cal 879) (supra) in deciding the instant appeal.
12. The submission that the above decisions, are to be distinguished on the ground that they are decisions on the Bengal Tenancy Act, is of no avail to Mr. Banerjee because in my view, the same principle would apply to the presumption of correctness of the Record of Rights finally published under the Estates Acquisition Act, 1953. I am therefore of opinion that it is not for the party, relying on the presumption of correctness of the record of rights, validly prepared under the West Bengal Estates Acquisition Act, 1953 and the Rules made thereunder, to prove the foundation or basis of the correctness of the entries of the record of rights. I, however, like to add that the said presumption would relate only to the entries recorded, as authorised by the said Act and the Rules framed thereunder and not otherwise, accordingly I hold that the entries in the disputed record of rights in favour of the appellant are correct and the evidence adduced on behalf of the plaintiff respondent did not rebut the said presumption of correctness attached to them. The first contention of Mr. Dutt therefore succeeds.
13. Though there is some weight in the second ground that weighed with the Court of Appeal below, to the effect that the specific provision of the Land Reforms Act might not be mandatory, but the learned Munsif cannot be held to be wrong in drawing an adverse inference against the plaintiff respondent for his non-production of the document in proof of the bhag settlement. But on the last ground I must record my dissent from the view, rather I should hold, that the use made by the Court of Appeal below of the admission of the appellant in the judgment of the Settlement Officer (Ext. 4) to the effect that the rent was half of the produce, was not justified. When the said document was going to be used against the appellant, Mr. Dutt rightly contended that his client should have been given an opportunity to tender his explanation to clear up the particular point. This rule though general is salutary. Fortunately the provisions of Section 145 of the Indian Evidence Act pronounced no uncertain sound upon this matter. I think it right to observe, not without a touch of regret, and not without surprise, that the general principle and the said specific and salutary provisions have not been followed by the learned Additional District Judge. I am of the view that his verdict on plaintiff's witness No. 2 is an inferential verdict and nonetheless sweeping on that account I am therefore of opinion that the learned Additional District Judge was wrong in relying on Ext. 4 as an admission of the appellant. All the three grounds of the Court of Appeal below are shaky and the judgment appealed against, based on the said three grounds, is consequently erroneous.
14. Mr. Dutt's next submission is that the suit, giving rise to this appeal, which is in the nature of declaratory suit, namely, as to whether his client is a Bargadar or not, is not maintainable because of the bar laid down under the provisions of Section 21 read with Section 18 of the West Bengal Land Reforms Act, 1955. Mr. Banerjee rightly takes an objection that this point was not taken before; but because it is a point of law which can be argued without any aid of additional facts I allowed the learned advocate for the appellant to argue the point with sufficient opportunity to Mr. Banerjee to reply. However, I find ultimately that Mr. Dutt is not correct. My reasons are as follows: Section 21(1) of the West Bengal Land Reforms Act. 1955 reads thus:
"Save as provided in Section 19, no order or other proceedings whatsoever under this Chapter shall be questioned in any civil court and no civil court shall entertain any suit or proceedings in respect of any matter mentioned in Sections 17 and 18"
It would therefore appear that the power of the civil court to entertain any suit, is only in respect of the matter or matters mentioned in Sections 17 and 18 of the Act, It is admitted that we are not concerned with Section 17 in the instant appeal. Section 18 of the Act provides:
"18 (1) Every dispute between a bargadar and the person whose land he cultivates in respect of any of the following matters, namely:--
(a) division or delivery of the produce,
(b) termination of cultivation by the bargadar,
(c) place of storing or thrashing the pro duce shall be decided by such officer or authority as State Government may appoint.
(2) If in deciding any dispute referred to in Sub-section (1), any question arises as to whether a person is a bargadar or not and to whom the share of the produce is deliverable, such question shall be determined by the officer or authority mentioned in Sub-section (1)."
15. Only three matters have been mentioned in sub-section (1) above; namely, division or delivery of the produce, termination of cultivation by the bargadar, and place of storing or thrashing of the produce. These three items are the matters of dispute. If any such dispute referred to in Sub-section (1) arises for decision and if in that connection any dispute as to whether the person was the Bargadar or not arises, such question should be determined by the Officer. It may be particularly noticed that though Sub-section (2) of Section 18 says that "such question shall be determined by the officer", but the section does not go so far as to say "exclusive" determination by such officer and/or that the "Civil Court shall have no jurisdiction" in the matter. For the above purpose Mr. Dutt has sought to bring in his aid the provisions of Section 21 of the Act which I have quoted above. In my view, the question as to whether a person is a bargadar or not, if raised, in deciding the said three mattery only in dispute, the same can be gone into collaterally and incidentally by the officer for the purpose of the decision of any of or all of these three matters. But he is not authorised to decide the question of title as to whether a person is a Bargadar or not, even though no dispute arises in respect of the said three matters". This view gets support from the opening word "if" in Sub-section (2) of Section 18. Mr. Dutt then attempts to meet the point by saying that Section 18 is mandatory. It is mandatory, but in my judgment, the mandate is with respect to the above three matters only and not in the matter of dispute as to whether a person is a Bargadar or not. Because of the omission of the provision of Section 17 appearing in the earlier Act, namely the Bargadars Act of 1950, from the Land Reforms Act, Mr. Dutt attempts also to argue that the jurisdiction to decide the question of title, whether a person is a Bargadar or not, has been intended to be given by the Legislature to the Officer only and therefore the Court's jurisdiction is ousted, at least impliedly. 1 do not think that this is the correct way of construing a Statute, only by looking the omission of a somewhat similar provision in the predecessor Act. Nor would I be justified in holding that the jurisdiction of the Civil Court is wholly taken away by implication. But by this I should not be understood to say that the officer has no jurisdiction even to deal with the question as to whether a person is a bargadar or not. What I propose to lay down is this, that the jurisdiction of the officer in deciding the said three matters is exclusive but Sub-section (2) of Section 18 of the West Bengal Land Reforms Act, 1955 does not oust the jurisdiction of the Civil Court to entertain a suit for declaration as to whether a person is a bargadar or a tenant.
16. Mr. Dutt draws my attention to some of the observations of Bijayesh Mukherjee J., in the case of Kalipada Naskar v. Moni Mohan Naskar, 67 Cal WN 1076 and contends that his Lordship has observed that the dispute between a bargadar and a tenant is always outside the scope of the officer's or the tribunal's jurisdiction. In my opinion, the conflict, arising on the observations made therein, is apparent but not real. They are made in the context of the said decision and are too technical, as well as general, to be fitted in the facts of each case, particularly in the facts of the instant case. The question again whether a person was a Bargadar or not, was neither the subject matter for decision before B. Mukherjee J. nor was it necessary to be decided in the case before his Lordship. In that view the observations are placed by Mr. Banerjee in the category of obiter. Strictly speaking, the said question again would not be a matter for decision, only under Section 21 of the Act.
17. This view of mine gets support from the observation of P.N. Mookerjee J., speaking on behalf of the Bench, in the case of Sarat Chandra v. Sk. Amin Ali, 66 Cal WN 229. Though no final opinion is expressed by their Lordships but the observation is in favour of the Court's jurisdiction. With respect to Bijayesh Mukherji J., I am unable to persuade myself to accept the keynote of the said Bench decision as explained by his Lordship, at page 1079 of 67 Cal WN to the effect:
''Once the Special Tribunal decides that, you are bargadar under "A" it is not open to you to bring a suit for a declaration that you are bargadars under B".
As the point was not decided, I leave it at that. Bhattacharya J., in the case of Jadunath v. Lal Mohan, 66 Cal WN 88 referred to by B. Mukherji J., in his said decision docs not lay down the contrary view. For the general principle as to when a Special Tribunal ousts the jurisdiction of a Civil Court, one can profitably refer to the Full Bench decision of this Court in the case of Krishnamoni Dasi v. Baser Mondal, . Mr. Dutt's contention on this branch viz., that the instant suit is not maintainable because of Section 21 read with Section 18 of the Act, also fails.
18. Mr. Dutt next contended that the provision of Sectio 46 of the West Bengal Estates Acquisition Act is also a bar to the institution of the instant suit. In my opinion Mr. Dutt is again incorrect in his submission. Firstly, because that the bar as provided in Section 46 of the Act, is a bar, which is applicable only for the period upto the final publication of the record of rights and not after it. When a record of rights has been finally published under the provisions of the W. B. Estates Acquisition Act and the suit has been filed challenging the correctness of the entries therein, as in the instant case, the suit in my judgment, must be held to be maintainable; otherwise it would be difficult to explain the provisions of Section 44(4), Section 47 and some other provisions of the Estates Acquisition Act. The said view has been taken by G.K. Mitter J., in the case of Kalipada Mondal v. State of West Bengal, 64 Gal WN 561. But the Bench decision in the case of Panchanan v. Kishori Mohon, 64 Cal WN 83 cited by Mr. Banerjee does not however help him.
19. As Mr. Dutt has succeeded in his first and main contention and as the basis or the grounds of the judgment are found to be erroneous, this appeal must be allowed. I therefore set aside the judgment and decree of the court of appeal below and affirm and restore those of the trial court, The entry in the record of rights (Ext. D) is held to be correct and binding between the parties and must be given effect to.
20. Coming now to the application tiled on July 27, 1964, in this Court, on behalf of the appellant, for restitution of the properties taken delivery of by the respondent on May 15, 1964, a few facts leading to the said application are necessary to be stated. The appeal was filed in September 6, 1962, out of time, by 131 days. An application under Section 5 of the Limitation Act was moved on which a Rule (C. R. No. 4075S of 1962 (Cal)) was issued on September 26, 1962. The Rule was made absolute on May 3, 1963 and the delay was condoned on condition of payment of costs, which admittedly were paid in time. The appeal was thereafter registered on May 21, 1963. An application being moved before my Lord, P. Chatter-jee J., he issued a Rule on June 6, 1963 (C. R. No. 2083S of 1963 (Cal)) which was disposed of by him in the following terms:
"1-8-63. The Rule is made absolute. The petitioner is directed to deposit the costs of the courts below, if any and if not already deposited cither in the trial court or in the executing court within three months from date. In default the decree for costs will be executed and the proper-tics may be sold in execution of the decree. On compliance the opposite party will be entitled to withdraw the same without furnishing any security. There will be no order for costs".
21. On an application filed on behalf of the appellant on January 28, 1964, with a misconceived prayer for extension of time to pay costs, his Lordship Chatterji J., passed the order on February 10, 1964 to the following effect:
"As the Rule stands discharged, I find no reason to extend the date".
These facts are necessary to be stated only to show that the order dated August 1, 1963 disposing of the Rule quoted in extenso above could not stand Discharged, as the condition for payment of costs was not made a condition precedent by Chatterjee J., for the discharge of the Rule. The Rule was made absolute unconditionally which is now not disputed by Mr. Banerjee. In other words, the respondents were unconditionally restrained from taking delivery of possession pending the hearing of the appeal. In case of default, Chatterjee J., provided only for the execution and sale of the properties and nothing else. Mr. Dutt submits that the respondent has violated the order of this court by taking possession of the properties. Mr. Banerjee in my view, rightly contends that the confusion had been created because of the order passed by this Court viz., the said subsequent order passed by Chatterjee J., on the 10th February 1964, and prays that his client should not be blamed and should not be held guilty of contempt of court. His client thought that the Rule stood discharged as recorded by Chatterjee J. and that he was entitled to take possession. In that view of the matter and as the appellant has succeeded in the appeal itself, I think that the interest of justice would be better served and the decency maintained, if the application is kept on the record and no order is passed thereon.
22. As the respondent was not lawfully entitled to take possession of the disputed property, pending the hearing of the appeal because of the order dated August 1, 1963 making the Rule absolute being unconditional, as stated above, the appellant is given liberty to file an application or to take proper steps, if so advised, for restitution of the property and/or for other or further appropriate reliefs available to him before the appropriate authority or Court, If such step is taken and/or an application is filed, the Court or the authority would dispose of the same according to law, after certainly giving an opportunity to the respondent.
23. There will be no order for costs in this appeal. Let the records go down immediately.