Bhajan Ahir vs Musammat Gangeshwar Kuar

Adami, J.—The petitioner moves this Court to set aside an order passed by the third Mansif at Arrah, in Title Suit No. 33 of 119, restraining the petitioner from further proceeding with an application made by him u/s 40 of the Bengal Tenancy Act before the Deputy Collector at Arrah.

The petitioner is an occupancy raiyat and holds land on a bhaoli rent under the opposite party, his landlord. It appears that on the 16th November 1918 he applied to the Sub-Divisional Officer for the appraisement of the produce of that land u/s 69 of the Bengal Tenancy Act, claiming that he should receive 60 per cent, of the produce while his landlord''s share was 40 per cent, thereof. The landlord, opposite party, objected that she was entitled to get 50 per cent of the entire produce less 5 seers in each maund. The Sub-Divisional Officer held that a Revenue Court in proceedings u/s 69 was not competent to decide what were the respective shares of the parties, and that the question could only be determined by a Civil Court.

On the 23rd December 1918 he ordered appraisement to be made on the share basis alleged by the petitioner, since the Amin reported it to be Correct. On the 27th February 1919, the petitioner and other tenants made an application, u/s 40 of the Bengal Tenancy Act to the Deputy Collector, for the commutation of the produce rent payable by them into a cash rent. Then on the 4th April 1919 the landlord, opposite party, on the strength of the decision of the Sub-Divisional Officer in the proceedings u/s 69 of the Bengal Tenancy Act, instituted a suit in the Court of the Munsif for a declaration that he was entitled to receive a rent in kind from the petitioner at the rate of 50 per cent, of the produce, less 5 seers per maund, and for the recovery of arrears due. On the same date the opposite party prayed for the issue of an injunction staying the proceedings u/s 40 in the Revenue Court on the ground that the question in issue there would be the same as that to be decided by the Civil Court.

The Munsif rightly refused to issue an order on the Revenue Court to stay the proceedings u/s 40, but he did issue an order against the petitioner, restraining him from proceeding with the Section 40, Bengal Tenancy Act, case until the disposal of the civil suit and sent a copy of the order to the Revenue Court, He held that such an order was justified under Clauses (c) and (e) of Section 94 of the CPC in the ends of justice, in that the Revenue Officer might again consider that he was incompetent to decide the question of shares and might be guided by the decision in the case u/s 69 to the detriment of the opposite party, plaintiff in the suit.

It is dear to us that, in the first place, the Revenue Court in the proceedings u/s 69 was wrong in holding that the dispute as to the proper shares of the produce could not be decided in that Court, and in the second place, that the Munsif acted improperly in the circumstances of this case in ordering the petitioner to refrain from prosecuting his application u/s 40.

Section 69 (1) (b) allows the Collector, if there is a dispute as to the division of the produce, to appoint an officer to divide it. A dispute as to the division of the produce apparently includes a dispute as to the shares into which it is to be divided. It would seem that the Sub-Divisional Officer in the proceedings u/s 69 and the Munsif as also the learned Vakil for the opposite party have relied on the decisions in the cases of Mir Tapurah Hossein v. Gopi Narayan 7 C. L. T. 251 and Nukheda Singh v. Ripu Mardan Singh 4 C. W. N. 239 in support of the contention that a Revenue Court cannot decide a dispute as to the shares in the produce, but neither of those rulings is in any way applicable, They merely determine that in proceedings u/s 69 a Revenue Court has not jurisdiction to decide a bona fide dispute as to the character of the holding or as to the nature of the rent, No such dispute existed in this case.

If the Sub-Divisional Officer was not prepared to decide the issue as to the proper shares, he should have referred the dispute to the Civil Court u/s 70 (5), but he was competent to decide it u/s 69 (1) (6).

To come next to the order of injunction complained of in this application. It is dear to me that it was made in an improper exercise of the Court''s discretion. The petitioner had under the law a right to apply for a commutation of the rent in kind into a cash rent, the relief sought for had nothing to do with the relief sought for by the opposite party in her suit, the commutation case was filed before the suit and in no sense was it a fraudulent or mala fide exercise of the petitioner''s statutory rights; and the fact that the Munsif sent to the Revenue Court a copy of his order restraining the petitioner from prosecuting his application was virtually an intimation to the Revenue Court that an injunction had issued against further proceedings. It is true that the letter addressed to the Deputy Collector was called a letter of request and the Deputy Collector was asked to adjourn the commutation application, but it virtually amounted to an injunction and the effect of the actual order issued against the petitioner was to forbid him further to take part in commutation cases, and the natural result of compliance with the order would have been the dismissal of his application for default of prosecution.

We find that the order restraining the petitioner from proceeding in the matter of his application u/s 40 of the Bengal Tenancy Act was improper and we must, therefore, set it aside with costs in favour of the petitioner measured at three gold mohurs.

Atkinson, J.

I agree.