Decided on September 23,1970

Jagabandhu Roy Chowdhury Appellant
Light House For The Blind Respondents


D. Basu, J. - (1.) This Rule has to be disposed of in the absence of the other party. The case has been fully and fairly argued by Mr. Mukherjee on behalf of the Petitioner and all the relevant decisions bearing on the point before this Court have been placed before me. The Small Cause Court Suit No. 24 of 1967, out of which the present' Rule arises, was brought by the Petitioner to recover the arrears of house rent from the Defendant Society for a period of four months and four days from August 1963 till December 4,1963. It should be mentioned at once that there was a land acquisition proceeding for the acquisition of this very property for the benefit of the Society and that the Collector took delivery of possession in that proceeding on December 5,1963. The claim for arrears of rent from the Defendant as tenant in the suit was, therefore, for a period anterior to the date of taking possession by the Collector in the land acquisition proceeding.
(2.) The suit was, however, dismissed on two grounds: (i) The first ground was that the suit was not maintainable inasmuch as the Plaintiffs who were the successors to the original Plaintiff, who died during the pendency of the suit, could not maintain the suit in the absence of a probate of the Will left by the original Plaintiff. This proposition seems to me to be somewhat striking because, if the probate proceeding took time for completion, there was No. law that all the litigations relating to the estate of the deceased should be allowed to be barred by limitation because the probate was not available. Apart from that, it was a case of death of the original Plaintiff pending the hearing. It. could hardly be dismissed for not obtaining the probate even though all the heirs under the ordinary law were on the record. The best thing that the Court could do was to stay the suit or to grant adjournment to the Plaintiffs to produce the probate. He could not dismiss the suit on this ground. This point does not require any further elaboration to dispose of.
(3.) As to the merits, the trial Court dismissed the suit on the ground that since the Plaintiff has already obtained compensation for the property in the land acquisition proceeding he could not claim any rent thereafter from the tenant even if - the period was anterior to the date of delivery of possession in favour of the Collector as referred to in Sec. 10 of the Land Acquisition Act. This Sec. clearly provides: When the Collector has made an award under Sec. 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances. It is absolutely clear from this provision that the title will pass from the private owner to the Government only with effect from the date when possession was taken by the Collector and until then the ownership of the land remains with the private owner even though acquisition, proceeding might have started long ago and even though an award had been made under Sec. 11 previously. This change of ownership is material also if we turn to the provision for determining the compensation in Sec. 23 of the various items which have been taken, into consideration in determining the amount of compensation the second item is the damage sustained by the person interested by reason of taking any standing crop or produce which may be on the land at the time of the Collector's taking possession thereof. It is quite clear that if the crop becomes mature at any point of time previous to the Collector's taking possession, it was the owner who was entitled to take the crops, and if the standing crops continue to remain in the land, the Collector could take them only on payment of compensation at the value of the crops. Supposing the land is cultivated by a bargadar under the barga system, can the Government appropriate the barga produce for any period prior to the taking of possession on the ground that the owner had forfeited his title to his landlord's share of the barga produce ? If this proposition could not be overturned, I do not see how a landlord's claim to arrears of rent accruing during any period prior to the taking possession could be said to have been lost as between him and the tenant simply because the landlord had been paid the market value of the land as it stood at the date of the notification. It might have been otherwise if the Court, having the award before him could point out from the award that the Petitioner's claim to rent had been taken into consideration in the award so that he could not claim it twice. The Court below, however, supported its decision by an unreported judgment of P.N. Mookerjee J. of this Court in C.R. 434 of 1964 dated June 23, 1965. The main ground upon which the Rule was discharged in that case was that the High Court had a discretion in exercise of its revisional jurisdiction and would not, therefore, interfere in a matter, like this But there was also an observation at the first instance that I am inclined to agree with the view of the two Courts below as to the rights of the Plaintiff vis -a -vis the Trust and the Defendant. This observation is an obiter as will be patent in view of the fact that P. N. Mookerjee J. disposed of a similar matter one year earlier in the case Benarasi Saha v/s. Lakshmi Rani Dey Sarkar, I.L.R. (1966) Cal. 662 where quite a considerable mass of case law relating to Sec. 16 was discussed by his Lordship and it was laid down there that until a Collector takes possession - The' owner's title is not disturbed and there is no vesting of title in the Government and this will be so notwithstanding that there might have been an award under the Land Acquisition Act for the compensation money in the meantime. If this decision had been brought to the notice of P. N. Mookerjee J. in C.R. 434 of 1964, the result would have been obviously otherwise. The facts in Benarasi Saha's case were indeed more crucial than the case before me. In that case, the recovery of possession against a third party was decreed notwithstanding the fact that there had been land acquisition proceedings though possession had not yet been taken on the date the suit was decreed. If a private owner could thus drive away, a trespasser, there is on principle no reason why he could not recover the rents due from his tenant upto the time when his title h extinguished by the land acquisition proceedings under Sec. 16 of the various decisions, which were referred to by Mookerjee J. in Banarasi Sha's case, the most elaborate one is that of the Full Bench of Patna High Court in State of Bihar v/s. Dr. G.H. Grant : A.I.R. 1960 Pat. 382 where the relevant provisions of the Land Acquisition Act were thoroughly examined and the conclusion was arrived at that in a proceeding under the Land Acquisition Act, title to the land does not pass to the State as soon as the award under Sec. 11 is made but passed only upon the delivery of possession under Sec. 16. Under the general law, the liability of a tenant to pay rent continues so long as the relationship of the landlord is not lawfully terminated. In the instant case, there was no such termination until the Plaintiff's title was extinguished under Sec. 16 of the Land Acquisition Act.;

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