# [1964] 3 S.C.R. 590

- **Citation:** [1964] 3 S.C.R. 590
- **Court:** Supreme Court of India
- **Decided:** 1963-04-04
- **Bench:** B. P. Sinha Cj, J.C. Shah, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1964-3-s-c-r-590-3008
- **Pages:** 11

## Headnote

Reveftue Sale-Suit for rteovery of tJO"Mlion °". a""ulment nf eneumbranee-Exeeution of decre• during the pmdeney
of appeal but before amendment of law-Abatemont of aui!-
BeMgal Land Revenue Sales Act, 1859 (XI of 1859),
1. 37Bengal Land Revenue Sales (West Be,.gal Ame11dmmt) Act,
1950 (W .B. VII of 1950), "· 4,7.
The appellant purchased a Touzi at a revenue •ale help
under the Bengal Land Revenue Sales Act, 1859, annuUep
3 S.C.R.
SUPREME COURT REPORTS
591
the encumbrances under s. 37 of the Act and sued the respon·
dents for
ejectment and recovery of possession. The trial
court decreed the suit and an appeal was taken to the High
Court. While the appeal was pending the Bengal Land
Revenue Sales (West Bengal Amendment) Act came into force
on March 15, 1950. The High Court found that the respon•
dents' property was a tenure in existence at the date of the
issue of the notification of sale as mentioned iti cl. b (I) ofs.
37 of the Act as amended by s. 4 of the Amending Act and
possession of the disputed property had been delivered to the
appellant before commencement of the Amending Act but
during the pendency of the appeal. It held that the land
in dispute came within the protection of ss. 4 and 7 of the
Amending Act, allowed the appeal and directed the trial
court to record an order of abatement of the 1uit under s. f
(2) thereof.
·It was contended by the appellant
In this Court that
after the delivery of possession no controversy remained in
existence and that •· 4 of the
Amending Act
had ao
retrospective operation.
Held that although s. 4 of the Amending Act was pri'1111
faoie prospective, it was retrospective to the extent it was
made so by s. 7 of the Amending Act and applied to pending
litigation.
It is well settled that an appeal is a continuation of the
original suit and as the present suit was pending in appeal
before the High Court and the decree had not become final
before the commencement of the Amending Act, it must be
held to have abated under s. 7 (1) (a), and not s. 7 (2) of the
Amending Act as decided by the High Court, as soon as that
Act came into force and it was not necessary to consider the
effect of the delivery of possession during the pending of the
appeal.
The Amending Act of 1950 intended to grant relief
to tenure holders if their tenures had not been wiped out by
annulment under s. 37 of the old Act before the Amending
Act came into force.
Section 4 of the Amending Act read with s. 7 of the
Act granted relief even in respect of revenue sales held
before its commencement.
Section 7 contemplated three kinds of cases, namely,
(i) a pending auit or proceeding for cjectment; (2) pending
196!
SdO<i.I Go(>al JJ111
v,
Ajil .l"umar H•l"1
1961
S•bHh Gop.l Bos1
••
A.jit & runar Hald<r
Sinho C. J.
592 SUPREME COURT REPORTS (1964) VOL.
appeal or application for review or application for revision
arising out of the first category made by an unsuccessful
plaintiff, and (3) a final decree or order ·made for ejectment •
A decree or order against which an ap!"'al had been filed and
was pending on the date of the commencement of the Amendinc
Act, if by the umuccessful plaintiff or applicant would be
covered hy s. 7 (I) (b), whereas a decree or order for eject•
ment which became final because . either no ap!"'al was
preferred againat it, or if there had heen one, it was finally
decided, would be within the purview of 1. 7 (2). If such a
final deoree for ejectment had been
executed by delivery of
possession before the commencement of the Amending Act,
the Legislature did
not
intend to reopen
such closed
transactions. But except those, in all the above categories,
if the suit, appeal or proceeding could not have been validly
instituted, preferred or made, in terms of the Amending Act,
all those pending suit1 or appeal! or applications would abate
according to s. 7 (I) (a) and (b); and the decrees would
become void under •· 7 (2).
CrvIL APPELLAT1il Jm11SDICTION : Civil Appeal
No. 250of1961.
Appeal. from the judgment and de

## Text

196J.
Murar!ra
Shyam ,Ram Eum:ir
••
ll.Hp Sinth Rathor1
DIU J.
1911
May 7.
590 SUPREME COURT REPORTS [1964] VOL.
have already explained what is meant by the word
"copy" in sub·s. (3) ofs. 81 and we are of the view
t:1at the defects pointed out on behalf of the appellant are not of such a character as to invalidate the
copy which was served on tlie appellant in the
present case.
In conclusion we have to point out that we
allowed one Dr; Z. A. Ahmed to intervene in these
appeals ·on the grounds mentioned in his petition
dated April 4, 1963. The intervener supported the
arguments advanced on behalf of the appellant.
We have fully dealt with those arguments in this
judgment and nothing further need be said about the
intervener's petition.
For the reasons
in these two appeals.
dismissed with costs.
given above; we see no merit
The· appeals are accordingly
A. ppeals diamisstd.
SUBODH GOPAL BOSE
ti,
AJIT KUMAR HALDAR AND OTHERS
(B. P. SINHA CJ., J.C. SHAH and
N. RAJAGOPALA AYYANGAR JJ.)
Reveftue Sale-Suit for rteovery of tJO"Mlion °". a""ulment nf eneumbranee-Exeeution of decre• during the pmdeney
of appeal but before amendment of law-Abatemont of aui!-
BeMgal Land Revenue Sales Act, 1859 (XI of 1859),
1. 37Bengal Land Revenue Sales (West Be,.gal Ame11dmmt) Act,
1950 (W .B. VII of 1950), "· 4,7.
The appellant purchased a Touzi at a revenue •ale help
under the Bengal Land Revenue Sales Act, 1859, annuUep
3 S.C.R.
SUPREME COURT REPORTS
591
the encumbrances under s. 37 of the Act and sued the respon·
dents for
ejectment and recovery of possession. The trial
court decreed the suit and an appeal was taken to the High
Court. While the appeal was pending the Bengal Land
Revenue Sales (West Bengal Amendment) Act came into force
on March 15, 1950. The High Court found that the respon•
dents' property was a tenure in existence at the date of the
issue of the notification of sale as mentioned iti cl. b (I) ofs.
37 of the Act as amended by s. 4 of the Amending Act and
possession of the disputed property had been delivered to the
appellant before commencement of the Amending Act but
during the pendency of the appeal. It held that the land
in dispute came within the protection of ss. 4 and 7 of the
Amending Act, allowed the appeal and directed the trial
court to record an order of abatement of the 1uit under s. f
(2) thereof.
·It was contended by the appellant
In this Court that
after the delivery of possession no controversy remained in
existence and that •· 4 of the
Amending Act
had ao
retrospective operation.
Held that although s. 4 of the Amending Act was pri'1111
faoie prospective, it was retrospective to the extent it was
made so by s. 7 of the Amending Act and applied to pending
litigation.
It is well settled that an appeal is a continuation of the
original suit and as the present suit was pending in appeal
before the High Court and the decree had not become final
before the commencement of the Amending Act, it must be
held to have abated under s. 7 (1) (a), and not s. 7 (2) of the
Amending Act as decided by the High Court, as soon as that
Act came into force and it was not necessary to consider the
effect of the delivery of possession during the pending of the
appeal.
The Amending Act of 1950 intended to grant relief
to tenure holders if their tenures had not been wiped out by
annulment under s. 37 of the old Act before the Amending
Act came into force.
Section 4 of the Amending Act read with s. 7 of the
Act granted relief even in respect of revenue sales held
before its commencement.
Section 7 contemplated three kinds of cases, namely,
(i) a pending auit or proceeding for cjectment; (2) pending
196!
SdO<i.I Go(>al JJ111
v,
Ajil .l"umar H•l"1
1961
S•bHh Gop.l Bos1
••
A.jit & runar Hald<r
Sinho C. J.
592 SUPREME COURT REPORTS (1964) VOL.
appeal or application for review or application for revision
arising out of the first category made by an unsuccessful
plaintiff, and (3) a final decree or order ·made for ejectment •
A decree or order against which an ap!"'al had been filed and
was pending on the date of the commencement of the Amendinc
Act, if by the umuccessful plaintiff or applicant would be
covered hy s. 7 (I) (b), whereas a decree or order for eject•
ment which became final because . either no ap!"'al was
preferred againat it, or if there had heen one, it was finally
decided, would be within the purview of 1. 7 (2). If such a
final deoree for ejectment had been
executed by delivery of
possession before the commencement of the Amending Act,
the Legislature did
not
intend to reopen
such closed
transactions. But except those, in all the above categories,
if the suit, appeal or proceeding could not have been validly
instituted, preferred or made, in terms of the Amending Act,
all those pending suit1 or appeal! or applications would abate
according to s. 7 (I) (a) and (b); and the decrees would
become void under •· 7 (2).
CrvIL APPELLAT1il Jm11SDICTION : Civil Appeal
No. 250of1961.
Appeal. from the judgment and decree dated
June 16, 1958, of the Calcutta High Court in Appeal
from Original Decree No. 144 of 1948.
B. Sen, S. N. Mukherjee and R. R. BiswatJ for
the appellant.
N. 0, Chatterjee and P. K. Ghosh for
the
respondents.
1963. May 7. The Judgment of the Court was
delivered by
SINHA C.J. -The main- question for deter·
mination in this appeal, on a certificate granted by
the High Court of Calcutta, is the scope and effect
of ss. 4 & 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.
3 S.C.R.
SUPREME COURT REPORTS
593
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 thereafetr
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 I/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 : "ls the lar,d 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 lea
1rned 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
idea• Go;.r • .,,
v.
Ajit Kumar HaliM
t:.1.
•
JHS
'-·-·-
SUMA G¥oi Bo"
"
.. -,
.l"vm•• HaJior
s;a.c. J.
' 594 SUPREME COURT REPORTS [1964] VOL ..
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, 19.54, 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
petitiqn filed on behalf of the plaintiff at the hearing
m the High Court that he had already obtained
possession in execution of the dei;ree 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 tb,e disputed property had been delivered to
the decree holder, as alleged by him, on March 29,
1949.
· 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 ofprocess iii the meantime. Heard learned
•
3 S.C.R.
SUPREME COURt REPORTS
595
lawyer. Re-call and put up in the presence
I9iJ
or both parties. Inform Nazir."
Suhdlr c.,.1 •• ,.
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 & 7 of the Amending Act and came to the
conclusion that the land in dispute
part of a
permanent tenure, held rent-free (Niskar), was protected under the provisions of the sections 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 thats. 7 (1) (b) had no application. It also took the view thats. 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 te the benefit of s. 7 ( 1) (a) to the effect that
the
pending at the appellate stage had abated.
In the result, the High Court allowed the appeal, set aside the judgment and decree of the Trial
Court and directed that Court to record an order of
abatement of the suit and to pass an order for refund
of court fees in favour of the plaintiff. The High
Court directed the parties to bear their own costs,
both in the Trial Court and in the High Court.
On this appeal, it has been pointed out on
behalf of the appellant, that the suit when instituted
was a good one in view of the provisions of s. 37 of
the Act XI of 1859, and that s. 4 of the Amending
Act, which amended s. 37 of the main Act would not
· govern the present controversy for two reasons,
namely, (I) that delivery of possession had already
been given to the plaintiff in execution of the decree
••
.tjit
lflldar
Si•lio C. J.
IffiJ
s.,.
••
d]il K- Haldar
sw.c . .1.
596 SUPREME COUR.t REPORTS
VOL.
of the Trial Court in his favour, and that, therefore,
the controversy had been finally closed in his favour
and (2) because s. 4 was not in terms retrospective .
It is th1e thats. 4 begins with the words "For Sec·
tion 37 of the said Act, the following section shall
be substituted," and then follow the terms of the
section, as it
now. Prima facie, therefore, it is
prospective in its operation. But when we look to
the provisions of s. 7, it becomes abundantly clear,
as rightly pointed out by the High Court, that the
section was retrospective. in so far as it was made
applicable to pending litigations. Section 7 is ie
these terms :
"7. (1) (a) Every suit or proceeding for the
ejectment of any pe.rson from any land in
pursuance of section 37 or section 52 of the
said Act, and
(b) Every appeal or application for
review
or revision arising out of such suit or proceeding, pending at the date of commencement
of this Act shall, if the suit, proceeding, appeal
or application could not have been validly,
instituted, preferred or made had this Act been
in operation at the date of the in!titution, the
preferring or the making thereof, abate.
(2) Every decree passed or order made, before
the date of commencement of this Act, for the
ejectment of any person from any land in pursuance of section 37 or section 52 of the said
Act shall, if the decree or order could not have
been validly passed or made had this Act been
in operation at the date of the passing or
making thereof, be void : Provided that nothing
in this section shall affect any decree or order
in execution whereof the possession of the land
in respect of which the decree or order was
passed or made, has already been delivered
3 S.C.R.
SUPREME COURT REPORTS
597
before the date of commencement of this Act.
(3) Whenever any suit, pro_ceeding appeal or
application abates under sub-section (1) or any
decree or orJer becomes void under sub-section (2), all fees paid under the Court-fees
Act, 1870, shall be refunded to the parties by
whom the same were respectively paid."
It is common ground that the present suit is
one for ejectment in pursuance of s. 3 7 of Act XI
of 1859. Hence, s. 7 (1) (a) comes into operation.
As will presently appear, s. 7 (1) (b) would not apply
to the appeal
pending in the High Court.
There
cannot be the least doubt that the suit was pending
in the High Court, on appeal, at the commencement
of the Amending Act, it being well-settled that an
appeal is a continuation of the original suit. That
being so, the question is whether the suit could have
been validly instituted, had the Amending Act been
in operation at the date of the institution of the suit.
That brings in the provisions of s. 4. The relevant
provisions of that section are as follows ·:
"4. For section 37 of the said Act, the following section shall be substituted, namely :-
"37. (1) The purchaser of an entire estate in
the permanently settled districts
of West
Bengal sold under this Act for the recovery
of arrears due on account of the same, shall
acquire the estate free from all encumbrances
which may have been imposed after the time
of settlement and shall be entitled to avoid and
annul all tenures, holdings and leases with the
following exceptions :-
(a) tenures and holdings which have been
held from the time of the permanent settlement either free of rent or at a fixed rent
or fixed rate of rent, and
IHI
Sub.Jh Gt1'al &u
'
••
Ajit Ku.,., Held.,
SiwC.J.
19fS
SuH«h G1J>al Bm
v.
liumsr H•Ut1r
Sinloa C. I.
598 SUPREME COURT REPORTS [1964) VOL.
(b) (i) tenures and holdings not included
in exception (a) above made, and
(ii) other leases of land whether or not for
purposes connected with agriculture or
horticulture,
.
existing at the date of issue of the notification for sale of the estate under this Act :
x
x
x
x
(2) For the purposes of this section :-
(a) (1) 'tenure' includes a tenure as defined
in the Bengal Tenancy Act, 1885,
x
x
x
x"
By virtue of s. 37(1), is amended, the plaintiff
as the purchaser of the entire estate, Touzi No. 6,
sold for recovery of arrears on account of that Touji,
had acquired the estate free from all encumbrances
and was entitled to avoid and annul all tenures except those detailed in (a) and (b) of that section.
Section 37 (1) (a) would not come into operation
iu this case because the finding is that the defendants
had· failed to prove the existence of tenure since the
time of the Permanent Settlement. But Cl. (h) (i)
would apply if it was a tenure in existence at the
date of the issue of the notification for the sale of the
estate. The defendant's property was a tenure so in
existence, on the finding by the High Court that the
tenure had been in existence from before 1910.
'
.
On the facts so found, what 1s the legal position?
The Amending Act of 1950 was intended to
grant relief to tenure holders under
proprietors
· whose estates had been sold under the Act of 1859,
if those tenures had not been wiped out as a result
of al).Ilulment uncler s. 37 of the old Act, and those
3 S.C.R.
SUPREME COURT REPORTS
599
annulments had become accomplished facts before
the Amending Act came into force on March 15,
Hl50. Section 4 grants relief to tenure-holders even
in respect of revenue sales held before that date, if
the provisions of s. 7 which give retrospective opera·
tion as aforesaid to the substantive provisions of the
Amending Act, which had extensively cut down the
rigours of the old s. 37 arc attracted, Section 7
contemplates three kinds of cases, namely, ( 1) a
pending suit or proceeding for the ejectmcnt of any
person in respect of his tenure or lease-hold, irrespective of whether or not the lease was for purposes
connected with agriculture or horticulture; (2) pending
appeal or application for review or application for
revision arising out of ( l) above, this appeal or
application being one by an unsuccessful plaintiff
and not by an unsuccessful defendant, because the
abatement contemplated by the section intended to
close the door against an attack on pre-existing title
and not against defence of such a title ; and (3) a
final decree or order made for ejectment. A decree
or order against which an appeal has been filed . and
has been pending on the date of the commencement
of the Act, if it is by the unsuccessful plaintiff or
applicant, would be covered by s. 7(l)(b); whereas
a decree or order for ejectment which has become
final because either no appeal was preferred against
it, or if there had been one, it has been finally decided, would be within the purview of s. 7(2). If
such a final decree for ejectment has been executed
by delivery of possession of the land in question, be·
fore the commencement of the Amending Act, the
legislature did not intend to reopen such closed transactions. But except these, in art the categories (1)
to (3) above, if the suit, appeal, or proceeding could
not h:i\.e been validly instituted, preferred or made,
terms of the Amending Act, all those pending
rnitl or appeals or applications would abate accor·
ding to s. 7 (l)(a) and {b); and the decrees would
b;:como void according to s. 7(2).
""
!Jutoili
B•11
v.
Ajit ]f,,;,,, H.Jior
Sir/uJ C. J.
s.loih c.;.1 BoSI
'•··
rum•r Hdld•r
Sid• C. J.
. ,
600
SUPRENIE COURT REPORTS [1964] VOL.
Under which category would the suit in the
instant case come? It is well-settled that a pending
appeal is a continuation of the suit out of which it
arises. In other words, the suit is pending on ap·
peal. Hence, the present suit, which was pending
in the High .Court on the date the Amending Act
came into- force, will come within the purview of
s. 7(l)(a). It will not come under the second cate·
gory because it is not on appeal by an unsuccessful
plaintiff, nor will it come under category (3)'above,
because the decree passed against the defendant had
not become final in the sense already indicated.
Hence, .in partial disagreement with the High Court,
we hold that the suit pending in the. High Court
on appeal had abated on March 15, 1950, under
s. 7(l)(a) as soon· as the Amending Act came into
force.
In this view of the matter, it is not necessary
to consider the effect of the delivery of possession,
given as aforesaid, during the peadency of the
appeal in the High Court.
In the result, the appeal fails and is dismissed,
though not for the same reasons as prevailed in the·
High Court. In view of the fact that the suit has
failed on account of the coming into force of the
Amending Act during the pendency of the litigation,
there will be no orders as to costs in this Court also.
Appeal di8rnissed.