Sinha, C. J. - (1.) The main question for determination in this appeal. on a certificate granted by the High Court of Calcutta, is the scope and effect of Ss. 4 and 7 of the Bengal Land Revenue Sales (West Bengal Amendment) Act (West Bengal Act VII of 1950) which hereinafter will be referred to as the Amending Act - which came into force on March 15, 1950.
(2.) The suit out of which this appeal arises was instituted as long ago as December 6, 1945, and has had rather a long and chequered career. The plaintiff, who is the appellant in this Court, instituted the suit for ejectment of the defendants from the disputed property on the ground that he had annulled the defendants' interests, whatever they were, under S. 37 of the Bengal Land Revenue Sales Act (Central Act XI of 1859) by virtue of his auction purchase, on January 6, 1936, of the entire revenue paying estate, Touzi No. 6 of the 24 Parganas Collectorate. After the auction purchase aforesaid, he obtained possession from the Collector in May-June 1936, and thereafter annulled and avoided all intermediary interests except those protected under S. 37 of Act XI of 1859, by appropriate notices, in or about June 1936. The land in dispute was described in the plaint as Mal land of the said Touzi and other Touzies and the plaintiff asked for Khas possession to the extent of his 1/6th share, jointly with the defendants. The suit was contested by the first defendant-respondent on a number of grounds, of which it is necessary to mention only the contention of fact, that the suit lands were not Mal lands, as alleged by the plaintiff and had never been assessed to revenue, nor were they included in the Mal assets of Touzi No. 6 . It was also claimed by the defendants that the lands in dispute were Brabmottar Lakheraj lands which were never within the regularly assessed estate, Touzi No. 6. Hence, the main issue, on question of fact, between the parties was: "Is the land in dispute Mal land of Touzi No. 6 or is it Lakheraj - On this question, the learned Subordinate Judge, by his judgment and decree dated April 20, 1948, held in favour of the plaintiff and decreed the suit for possession, with mesne profits to be ascertained later. The learned Subordinate Judge held that the land in suit was Mal land of the Touzi No. 6 and other Touzies and that the defendants' interest was not protected from annulment- under S. 37 of the Act of 1859. The first defendant appealed to the High Court in July 1948; and the appeal was pending when the Amending Act was enacted. When the appeal was put up for hearing before a Division Bench on March 8, 1954, the learned Judges thought it necessary to call for a finding on the question whether possession had already been delivered to the successful plaintiff in execution of the decree of the Trial Court, before the Amending Act came into force. This enquiry was instituted in view of the sworn petition filed on behalf of the plaintiff at the hearing in the High Court that he had already obtained possession in execution of the decree on March 29, 1949, and that, therefore, S. 7 of the Amending Act did not render the appeal void. The defendant-appellant in the High Court contested this statement of fact The learned Subordinate Judge submitted a finding to the High Court to the effect that possession of the disputed property had been' delivered to the decree holder, as alleged by him, on March 29 ,1949.
(3.) The High Court accepted the finding of the trial Court that possession had been delivered to the decree holder in pursuance of the Trial Court's decree The High Court further considered the effect of the proceedings taken at the execution stage. It appears that the plaintiff had made an application for delivery of possession on March 28, 1949, and the following day, on March 29, 1949, the judgment debtor, who had already preferred his appeal to the High Court, Filed a petition to the Court praying for one month's time to bring a stay order from the High Court and for stay of process meanwhile. The learned Subordinate Judge disposed of the petition, in the following terms: "Judgment debtor files a petition, praying for one month's time to bring a stay order and for stay of process in the meantime. Heard learned lawyer. Recall and put up in the presence of both parties. Inform Nazir." The High Court very elaborately considered the effect of this order with reference to decided cases of different High Courts, and came to the conclusion that the delivery of possession which had been given to the decree holder was without authority and hence a nullity. The High Court then considered the effect of Ss. 4 and 7 of the Amending Act and came to the conclusion that the land in dispute being part of a permanent tenure, held rent free (Niskar), was protected under the provisions of the Section aforesaid. The High Court took the view that the decree passed by the Trial Court had become void under S. 7 (2) of the Amending Act, and that S. 7 (1) (b) had no application. It also took the view that S. 7 (1) (a) would apply and on that account the plaintiff would be entitled to refund of the court-fees, as the suit had abated. But even so, the High Court was not prepared to accept the position that the defendant was entitled to the benefit of S. 7 (1) (a) to the effect that the suit pending at the appellate stage had abated.;