A.C. Sen, J. - (1.) The present Letters Patent Appeal once came up for hearing before B.N. Banerjee J. and one of us D. Basu J. The principal point that was urged before their Lordships was the applicability of Sec. 46 of the West Bengal Estates, Acquisition Act, 1953, to the facts of the case. B.N. Banerjee J. came to the conclusion that Sec. 46 of the West Bengal Estates Acquisition Act was not attracted to the facts and circumstances of the case. In coming to this conclusion B.N. Banerjee J. mainly relied on three Bench decisions of this Court, namely, (i) Lala Gangaram v/s. Krishna Gopal Jhunjhunwalla, (1955) 59 C.W.N. 1006, (ii) Panchanan Pramanik v/s. Kishori Mohan Banerjee, (1959) 64 C.W.N. 83 and (iii) Manmotha Nath Kayal v/s. H.S. Khyer A.U, (1961) 66 C.W.N. 121.
(2.) Mr. Manindra Nath Ghosh appearing on behalf of the Defendant Appellant before that Bench drew the attention of their Lordships to another Bench decision in the case of Dhirendra Nath Bose v/s. Sushil Kumar Safui, (1958) 63 C.W.N. 521, in support of his contention that Sec. 46 of the West Bengal Estates Acquisition Act did apply to the facts and circumstances of the case. In Dhirendra Nath Bose v/s. Sushil Kumar Safui a suit for the declaration of the Plaintiff's tenancy right was stayed by the Division Bench. In the suit, out of which the instant Letters Patent Appeal arises the primary question for determination was whether the Defendants Appellants had any jamai right under the Plaintiffs Respondents. Mr. Ghose, therefore, argued that according to the principle laid down in Dhirendra Nath's case it should have been held that the suit fall within the ambit of s 46 of the West Bengal Estates Acquisition Act and in that view the suit should have been stayed.
(3.) B.N. Banerjee J. rejected the contention of Mr. Ghosh, because his Lordship was clearly of opinion on an analysis of Sec. 46 of the West Bengal Estates Acquisition Act that a dispute as to (the existence or non -existence of a tenancy is outside the scope of Sec. 46, West Bengal Estates Acquisition Act. In the cases of Lala Gangaram (1), Panchanan Pramanik (2) and Manmotha Nath Kayal (3) it has been held that a suit in which the dispute is as to whether or not a person is a tenant in respect of a particular land does not come within the preview of Sec. 46 of the West Bengal Estates Acquisition Act. It is for this reason that his Lordship referred to these three cases to fortify die conclusion he arrived at on an analysis of Sec. 46. His Lordship also considered at great length whether there was any conflict between the case of Dhirendra Nath Bose (Supra) on the one hand and the cases of Lata Gangaram (Supra), Panchanan Pramanik (Supra) and Manmotha Nath Kayal (Supra) on the other. His Lordship started the discussion on this point by saying this, viz.: The decision in the case of Dhirendra Nath Bose ( : 63 C.W.N. 521) did not in terms lay down that; the expression 'determination of status of any tenant or incidents of any tenancy' would include the question of existence or non -existence of the tenancy itself, although the suit was one in which there was a prayer made for declaration of the tenancy right in the disputed property itself. His Lordship then quoted the following observation of P.N. Mookerjee J. in Manmotha Nath Kayal's case regarding the decision in Dhirendra Nath Bose's case (Supra): In the above case...on the construction of the plaint ...and upon the construction of the statute as made by their Lordships...the actual decision is open to no objection.;