Decided on September 29,1961



- (1.) THIS Rule raises a short but difficult question. It is unfortunate that we have to hear and decide this Rule ex parte but that cannot be helped, as Mr. Basu, who appeared at one stage for the opposite parties, retired from this case with our permission in view of the fact that his clients had taken away the papers from him and had not cared to return them in spite of several reminders. The opposite parties have not made any separate arrangement for their representation in this Rule. Mr. Roy, however, who appears for the petitioner, has, with his usual fairness, placed before us all the relevant decisions on the point at issue and discussed the matter in all its relevant aspects, not merely from the point of view of his client but with a view to assist the Court to come to a just and proper decision on this complex but oft-recurring point of law.
(2.) THE point involved raises the question of construction and scope of sec. 46 of the West Bengal Estates Acquisition Act. That section, as it now stands, reads as follows: "46. Bar to jurisdiction of Civil Court in respect of certain matters-Where an order has been made under sub-section (1) of Section 39 directing the preparation or revision of a record of rights, no Civil Court shall entertain any suit or application for the determination of rent or determination of the status of any tenant or the incidents of any tenancy to which the record of rights relates, and if any suit or application, in which any of the aforesaid matters is in issue, is pending before a Civil Court on the date of such order, it shall be stayed, and it shall, on the expiry of the period prescribed for an appeal under sub-section 3 of section 44 or when an appeal has been filed under that sub-section, as the case may be, on the disposal of such appeal, abate so far as it relates to any of the aforesaid matter. Explanation-In this section suit includes an appeal. "
(3.) THE instant suit, of which the petitioner seeks stay under the aforesaid section, is a suit for declaration of title, confirmation of possession and permanent injunction,-in the alternative, for recovery of possession with mesne profits,-in respect of the disputed jalkar with an additional prayer for a further declaration that a registered Kabuliyat, executed by the petitioner defendant No. 1, on November 8, 1954, in favour of the plaintiffs opposite parties in respect of the same, is invalid and inoperative and not binding on the said plaintiffs and has conferred no title on the said defendant. The suit was brought upon, inter alia, the following allegations: (i) that, by a Kabuliyat of the year 1358 B. S. , the defendant petitioner took from plaintiffs settlement of the above jalkar at an annual rental of Rs. 17,375/-, which settlement was to expire with the expiry of Pous 1360 B. S. when the said defendant was to vacate possession in favour of the plaintiffs ; (ii) that, in terms of the above stipulation and in pursuance of a notice, given by the plaintiffs in accordance therewith, the defendant petitioner actually gave up possession of the disputed Jalkar with the expiry of Pous 1360 B. S. and the plaintiffs duly entered into possession of the same; and (iii) that, the defendant, however, did, thereafter, set up a false and fraudulant Kabuliyat dated November 8, 1954, to assert title to the disputed jalkar and, on the strength of the same, was attempting to dispossess the plaintiffs.;

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