- (1.) This Rule was issued on the prayer of the Plaintiffs-Petitioners under the following circumstances: They instituted a suit against the opposite party in the court of the Munsif of Ghatal for a declaration that they have got a korfa right in respect of a plot of land described in the schedule of the plaint. There was also a prayer for confirmation of their possession and, in the alternative, for recovery of khas possession if it was found by the court that they had beer dispossessed by the Defendant opposite party. The suit was contested in the court below by the opposite party and after the suit was pending in the trial court for some time, the opposite party took a preliminary objection that the suit was not entertainable by the Civil Court in view of the provisions of Section 4 of the West Bengal Estates Acquisition Act, 1953. This preliminary objection of the Defendant opposite party was given effect to by the learned Munsif, who directed that the plaint should be returned to the Plaintiff's for being filed in Civil Court after the questions which had been raised in the suit were disposed of by the Revenue Authorities, who were then preparing a record-of-rights in the locality. The Plaintiffs have come to this Court challenging the legality and propriety of this order.
(2.) Mr. Sinha, appearing on behalf of the Plaintiffs-Petitioners, contended that the provision of Section 46 of the Estates Acquisition Act had no application to the facts of the present case and the learned Munsif was wrong in refusing to entertain the suit and in thinking that the Civil Court had lost its jurisdiction temporarily. Mr. Sinha contended that Section 46 of the Estates Acquisition Act, which curbs the jurisdiction of the Civil Court at least temporarily applies only to cases where the determination of rent or determination of the status of any tenant or the incidents of any tenancy is in issue. Mr. Sinha admitted that where any of these questions have got to be determined, the Civil Court should wait till the preparation of the record-of-rights, and keep the suit stayed. It was the argument of Mr. Sinha that in this particular case the Plaintiffs-Petitioners were claiming a tenancy right in respect of a particular plot of land although for assertion of that right the tenancy had to be described as korfa tenancy. The real dispute in the submission of Mr. Sinha was a dispute about the right of the Plaintiffs-Petitioners to possess the disputed land, which the Defendant opposite party was attempting to take into her possession.
(3.) In support of the above contention Mr. Sinha cited a case Lola Gangaram v. Krishnagopal Jhunjhuwwalla and Ors.,1955 59 CalWN 1006. In that case it was held by a Division Bench of this Court that a suit in which the title of the party is to be determined, viz., whether he is or is not a tenant in respect of a particular land under another person does not come within the purview of Section 46 of the Estates Acquisition Act. This case has been followed by Baehawat J., sitting singly in a case (Sripati Charan Panja v. Narendra Nath Roy Choudhury and Ors.,1956 60 CalWN 1070. 3. Mr. Jana, appearing on behalf of the opposite party, contended, on the other hand, that Section 46 of the Estates Acquisition Act applies also to a case where a question of the existence of the tenancy is raised because the determination of the rent of a holding or the status of a tenant or the incidents of any tenancy necessarily involves the determination of the existence of the tenancy. In this connection, Mr. Jana drew my attention to an unreported decision of a Division Bench of this Court in Kishori Mondal ors. v. Sk. Bhutu Gayen Civ. Rev. Case No. 3449 of 1955 (unreported). On a perusal of that judgment I find that the learned Judges were of opinion that although there may he a prayer by a tenant for declaration of his tenancy right in respect of any land, Section 46 of the Estates Acquisition Act would apply even if for a proper decision of the dispute, the court will necessarily have to determine the status and the incidents of the tenancy. Having regard to the facts of the case before me I am not inclined to think that the issue, which is material, is either the status of the tenant or any incidents of the tenancy. The vital issue in this case is whether the Plaintiffs-Petitioners have got a right to retain their alleged possession of the disputed land as against the opposite party as tenants. Such a dispute is really a dispute with regard to a right in a particular land and it does not certainly come within the purview of Section 46 of the Estates Acquisition Act. If a suit of this nature is to be governed by that section then disastrous consequences would follow in many cases. We can well imagine cases where a landlord may threaten to dispossess a tenant from his holding or may even actually dispossess him. If in such a case the tenant were to abide by the completion of the record-of-rights and if he were to be deprived of his remedy in a Civil Court, then he would be placed in a very sad predicament. In cases of this nature the tenant has, oftentimes, to move the Civil Court for an appropriate order of injunction. Such an order cannot be passed by any Revenue Authority. Section 46 of the West Bengal Estates Acquisition Act restricts the power of the Civil Court temporarily. The operation of that section should, therefore, be confined to cases to which the section applies in its terms and it should not be extended beyond that limit In my opinion, the section applies to suits and applications, which are purely suits and applications for the determination of rent or determination of the status of any tenant or the incidents of any tenancy. The operation of Section 46 of the Act cannot be extended to cases where a person seeks for a declaration of his right to any land as a tenant and where that right is denied by the other side. Even if it be necessary for the court to determine the status of the tenant or the incidents of the tenancy for the purpose of determining the primary dispute, viz., the dispute relating to the land, such a suit taken in its totality must not hi deemed to be a suit within the purview of Section 46 of the Act and the Civil Court would have its ordinary jurisdiction to try the suit.;