JUDGMENT

J.N. Hore, J.

1. Srimati Saralabala Ghosh, the original plaintiff instituted the Title Suit No. 207 of 1968 in the Court of the learned Munsif, Ghatal for declaration of her title to the suit-land, further declaration that the principal defendants were not bargadars in respect of the same and for permanent injunction restraining them from interferring with her possession. Subsequently, the plaintiff amended the plaint by adding a prayer for recovery of possession, if it was found that she was out of possession. The plaintiff's case was that she purchased the suit-land and was in Khas possession thereof with the help of her labourers. In the Revisional Records of rights, the land was recorded in her name and she paid rent to the State of West Bengal. It was alleged that the principal defendants in collusion with her enemy camp had made an application before the J.h.K.O.-cum-Bhag-chasi Officer as well as an application before the settlement camp claiming themselves as bargadars and for recording their names as such in respect of suit-land falsely asserting that they were Bargadars. The defendants also threatened her with dispossession.

2. The principal defendants contested the suit alleging, inter alia, that they had been in possession of the suit-land as bargadars under the plaintiff. During the pendency of the suit, the suit-land was recorded in the names of the defendants as bargadars under the plaintiff in a proceeding Under Section 44(2A) of the West Bengal Estate Acquisition Act.

3. Upon a consideration of the evidence on record the learned Munsif disbelieved the defedant's story of Barga cultivation but found them to be in possession of the suit-land and accordingly passed a decree for recovery of possession in favour of the plaintiff.

4. Defendant Nos. 1 and 2 preferred an appeal against the said judgment and decree passed by the learned Munsif being Title Appeal No. 208 of 1970. During the pendency of the appeal Saralabala died and the present respondent Nos, 1 to 3 were substituted in her place. The learned Additional District Judge, 1st Court, Midnapur who heard the appeal dismissed it and affirmed the judgment and decree passed by the learned Munsif. Being aggrieved the defendant Nos. 1 and 2 have preferred this second appeal.

5. The first point that has been urged by Mr. Basu, the learned Advocate for the appellant, is that the Civil Court had no jurisdiction to entertain the suit. It has been contended that Sub-section 1 of Section 21 read with Section 18 of the Land Reforms Act clearly bars the jurisdiction of Civil Courty to entertain such a declaratory, suit as to whether the defendant is a bargadar or not.

6. Section 21(1) of the West Bengal Land Reforms Act, 1955 reads thus :

"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 proceeding in respect of any matter mentioned in Sections 17 and 18". It would appear that Sub-section (1) of Section 21 which provides bar of Civil Court's jurisdiction contains two parts. First, it lays down that no order made by the authorities under Chapter-Ill can be questioned in Civil Court which would be debarred from entertaining any challenge in respect of any order passed under Chapter-Ill of the Act. Secondly, it lays down that in the matters of dispute referred to in Clauses (a), (aa) and (b) in between bargadar on the one hand and the jotedar on the other, the jurisdiction of Civil Courts stands ousted.

7. 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 produce [omitted by the West Bengal Land Reforms (Amendment) Act, 1970 and then by the West Bengal Land Reforms (Amendment) Act 1972 with retrospective effect from July 13, 1970] shall be decided by such Officer or authority as State Government may appoint.

18(2) "If in deciding any dispute referred to in Sub-section (1) (or otherwise) 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)". The words 'or otherwise' have been added by the West Bengal Land Reforms (Amendment) Act 1974, long after disposal of the suit and the first appeal.

8. Only three matters (now two matters) have been mentioned in subsection (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 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. The question as to whether the person is a bargadar or not, if raised, in deciding the said matters only in dispute, can be gone into collaterally and incidentally by the Officer for the purpose of the decision of any or all of the matters mentioned in Sub-section (1). 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 matters. 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 not. This view is supported by the decision in Jatindra Nath Malik v. Sushilendra Patit reported in 69 CWN 210. This view also gets support from the observation of P. N. Mukherjee, J., speaking on behalf of the Bench in the case of Sarat Chandra Panda and Others v. Sk. Amin Ali and Ors., 66 CWN 229. Though no final opinion is expressed by their Lordships the observation is in favour of the Court's jurisdiction.

9. Mr. Basu, has contended that the dispute is with regard to termination of Bhag cultivation Under Section 18(1) of the Act, as evidenced by the notice sent by the Bhag Chas Officer to the respondents (Ext. 2) and the Civil Court had not, therefore, the jurisdiction to entertain the suit. The contention appears to be entirely misconceived. The suit was not for termination of cultivation by bargadar. It was a suit for declaration of the title of the plaintiff and a further declaration that the defendant was not a bargadar in respect of the suit-land. The suit did not really relate to any of the matters Under Section 18(1) of the Act. Moreover, Ext-2 does not show that the proceeding before the Bhag Chas Officer at the instance of the defendant was a proceeding for termination of Bhag cultivation. Such a proceeding could not obviously be initiated by a bargadar. Ext. 2 shows that the defendant filed an application alleging that he was a bargadar in respect of the suit property and that the plaintiffs were trying to forcibly evict him. Section 17 of the Act lays down the grounds on which a person is entitled to terminate the cultivation of his land by a bargadar. There was no proceeding at the instance of the plaintiff for termination of the Bhag cultivation. If the defendant was really threatened with eviction otherwise than in accordance with law, his remedy lay in a suit for injunction inasmuch as the Bhagchas Officer was incompetent to give proper relief in such a case.

10. The second point that has been urged by Mr. Basu is that after insertion of Sub-section (3) of Section 21 of the Act by the West Bengal Land Reforms (Amendment) Act, 1974, the question whether the appellant is a bargadar under the respondent in respect of the suit-land must be referred by this court to the officer or authority mentioned in Sub-section (1) of Section 18 for decision. Sub-section (3) of Section 21 as inserted by the West Bengal Land Reforms (Amendment) Act, 1974 (W.B. Act XXXIII) is as follows :

"If any question as to whether a person is or is not a bargadar arises in the course of any proceeding before any Civil or Criminal Court, the Court shall refer it to the officer or authority mentioned in Sub-section (1) of Section 18 for decision". The words 'suit, case or appeal or other proceedings' were inserted after the word any by the subsequent Amendment Act of 1981. Now, Sub-section (3) of Section 21 came into force after disposal of both the suit and the first appeal but during the pendency of the present second appeal. Mr. Basu, has contended that since the appeal is continuation of the suit, the issue as to whether the appellant is a bargadar or not must be referred to the Bhag Chas Officer for decision by this Court. Mr. Banerjee, learned Advocate for the Respondent has, on the other hand, contended that the expression Civil Courts in Sub-section (3) does not include the High Court and Section 21(3) has no application.

11. In Narsing Das Tansuk Das v. Chogemull, AIR 1939 Cal 435 F.B. it has been held by the majority of the Full Bench that the words "Civil Courts" in the Bengal Agricultural Debtors Act have the same meaning as they have in the Letters Patent and the Bengal, Agra and Assam Civil Courts Act, 1887 namely, those courts of civil jurisdiction in Bengal, subordinate to the High Court and do not, therefore, include the High Court, Derbyshire C.J. observed as follows :

"I cannot construe the Bengal Agricultural Debtors Act as enacting something contrary to the Government of India Act, 1919, when another construction is possible and yet consistent with the purpose and meaning of the Act as a whole. If the two words in question were "Civil Court" (without the two initial capital letters), it might well be said that they mean all Courts in the Province exercising civil jurisdiction. But the words are "Civil Courts" (with initial capital letters) ; that would indicate that they mean a particular class of Court exercising civil jurisdiction well understood when the words "Civil Court" are used. It is common in this Province to refer to "Civil Courts" as distinct from the High Court. Thus, there are "Civil Court" holidays quite distinct from "High Court" holidays. Clause 16 of the Letters Patent of 1865 provides that:

The High Court shall be a Court of Appeal from the "Civil Courts" (capitals) of the Bengal Division of the Presidency of Fort-William and from all other Courts subject to its superintendence.

That clearly recognises Civil Courts as a class of Courts of Civil Jurisdiction separate from and subordinate to, the High Court. The Bengal, Agra and Assam Civil Courts Act, 1887, which repealed the Bengal Civil Courts Act, 1861 provides in Section 3- that:

There shall be following classes of Civil Courts under this Act: (1) the Court of the District Judge; (2) the Court of the Additional District Judge; (3) the Court of the Subordinate Judge; and (4) the Court of the Munsif.

* * * *

In my view, the words "Civil Courts" in the Bengal Agricultural Debtors Act have the same meaning as they have in Clause 16 of the Letters Patent and in the Bengal Civil Courts Act, 1887, namely those Courts of Civil Jurisdiction in Bengal subordinate to the High Court, to wit, the Courts of the District Judge, the Additional District Judge, the Subordinate Judge, and the Munsif. It follows that in my view the words "Civil Court" in the Bengal Agricultural Debtors Act, 1935, do not include the High Court."

12. The same view has been reiterated by a later Special Bench in Khirode C. Ghosh v. Narendranath Sanyal, AIR 1939 Cal. 599 F.B. The reasons given in these two decisions also apply to the instant case. It may be mentioned here that in Sub-section (1) the words are 'civil court' (without the two initial capital letters) but in Sub-section (3) the words are 'Civil Courts' (with initial capital letters). Relying on these two decisions it has been held by a Division Bench in Jogendra Nath Bose v. Sushil Kumar Safui, 80 CWN 250 that the word 'Civil Court' in Section 57(b) Sub-section (2) of the West Bengal Estates Acquisition Act, 1959 (as inserted by the West Bengal Estates Acquisition Second Amendment Act 1973) does not include the High Court and an appeal which was pending in the High Court on the date when the said Amendment Act came into force did not abate. The case of Radhapada Jana v. Janendra Nath Bose, 82 CWN 833 is directly on this point. In that case also the suit and the appeal arising out of the suit had been disposed of before Section 21(3) of the West Bengal Land Reforms Act, 1955, as inserted by the West Bengal Land Reforms (Amendment) Act, 1974 but an appeal was pending in the High Court. It was held that the 'Civil Court referred to in Section 21(3) of the West Bengal Land Reforms Act, 1955 does not include the High Court and that Section 21(3) had no application and it was not necessary to refer the question whether the defendant was a bargadar or not to the prescribed authority. I respectfully agree with this view. It is not, therefore, necessary to refer the issue as to whether the appellant is a bargadar or not to the prescribed authority for decision.

13. No other point has been urged before me on behalf of the appellant. The appeal is, therefore, dismissed. The judgement and decree of the court below are affirmed. I make no order as to costs.