Madhya Pradesh High Court
Kashiram vs State Of Madhya Pradesh And Ors. on 4 April, 1996
Equivalent citations: AIR1996MP247, AIR 1996 MADHYA PRADESH 247
JUDGMENT S.C. Pandey, J.
1. This is an appeal under Section 100 of the Code of Civil Procedure (hereinafter the CPC for short) filed by the plaintiff against the judgment and decree dated 26-7-86, passed by the First Additional Judge to the Court of District Judge, Ho-shangabad in Civil Appeal No. 53-A/81 arising out of judgment and decree dated 1-5-81, passed by Civil Judge, Class II, Sohagpur in Civil Suit No. 40-A/80.
2. The appellant filed a suit for declaration of his title and for permanent injunction restraining the respondent No. 1 from interfering with his possession of the land. It was also claimed that the order passed by the competent authority and the Sub-Divisional Officer, Sohagpur in Revenue Case No. 735/ A/90 B(3) 74-75 Under Section 11 of the M. P. Ceiling on Agricultural Holdings Act, 1960 (hereinafter the Act for short) be declared void. The appellant claimed that he was holding Khasra No. of 80,8.87 acres of land situate in village Dhadhiyakishore, Tahsil Sohagpur, District Hoshangabad from respondent No. 3 Aman Singh on lease as a 'Shikmi Kashtkar' from the year 1966-67. Therefore, he became an occupancy tenant of the suit land and thereafter under the provision of Section 190A of the M. P. Land Revenue Code (hereinafter the Code for short), 1959 a Bhumiswami prior to 1-1-71. He has also paid the compensation for the land in question to respondent No. 3 by executing a sale deed in favour of the respondent No. 3 and paying him compensation of Rs. 7,000/-. The date of execution of the sale deed was 6-4-72. It was further alleged that the respondent No. 1 through competent authority under the Act started proceedings for declaration of land belonging to respondent No. 3 as surplus. The respondent No. 2 in Revenue Case No. 735/ A/90B (3) 74-75 declared the land in suit as surplus belonging to respondent No. 3 and a final order was passed. He further rejected the objection of the appellant Under Section 11(4) of the Act. Thereupon the appellant brought this suit against the order dated 31-8-70 under Section 11(5) of the Act after giving notice Under Section 80 of the C.P.C. The suit was filed on 29-11-77 within three months of the date of order rejecting objection of the appellant Under Section 11(4) of the Act.
3. The respondent No. 3 admitted the case of the appellant. However, the respondents Nos. 1 and 2 contested the case of the appellant denying the allegations made in the plaint. The respondents Nos. 1 and 2 claimed that the real owner of the suit land was the respondent No. 3 and not the appellant. They claimed that the sale deed was executed for defeating the provisions of the Act. They also claimed that the Civil Court had no jurisdiction in this matter as per Section 46 of the Act.
4. The trial Court held that the appellant was the Bhumiswami of the land in dispute from before 1-1-71 and, therefore, the Civil Court had jurisdiction to decide the dispute. According to trial Court, land belonged to the appellant and not to the respondent No. 3. Therefore, Civil Court had jurisdiction to decide the case. The trial Court did not consider it necessary to decide the point whether the sale deed dated 6-4-72 was made with a view to defeat the provisions of the Act because in its opinion the appellant had become Bhumiswami by the operation of law prior to 1-1-71. The finding of the trial Court was that the respondent No. 3 had given the appellant suit land on lease from 1966-67. Since that lease was contrary to Section 168 of the Code, the appellant acquired status of occupancy tenant and by virtue of Section 190A of the Code became a Bhumiswami. Therefore, the trial Court granted a decree in favour of the appellant to the effect that appellant had entitled to Khasra No. 80, area 8.87 acres, situate in village Dhadhiyakishore and it also passed a decree of permanent injunction restraining the respondent from interfering with the possession of the appellant.
5. In coming to the conclusion as it did, the trial Court found that the appellant was in possession of the suit land from 1966-67 as a Shikmi Khashtkar and, therefore, he had acquired the right of a Bhumiswami in the suit land.
6. The respondents Nos. 1 and 2 filed an appeal against the judgment and decree of the trial Court and the lower appellate Court has reversed the judgment and decree of the trial Court on a finding that the appellant was a Shikmi Kashtkar only for the period from 1969-70 onwards and, therefore, it could not be said that on 1-1-71 he was a Shikmi Kashtkar continuously for three years. In the opinion of the learned Addl. District Judge, Section 168 of the Code would be violated only when a person is continuously in possession as a lessee for three years. In this case, the appellant on 1-1-71 was not in possession continuously for three years and, therefore, there was no violation of Section 168 of the Code. Consequently the appellant could not acquire any right or title Under Section 169 of the Code as an occupancy tenant and equally that of a Bhumiswami Under Section 190-A of Code. The learned Addl. District Judge, however, rejected the contention of the respondents Nos. 1 and 2 that the civil suit would not be maintainable against the order passed by the competent authority Under Section 11(4) of the Act. Further the learned Addl. District Judge has found that the sale deed was executed with a view to defeat the provisions of the Act. In view of the conclusion of the Addl. District Judge, he allowed the appeal.
7. The following substantial question of law was framed by the Court at the time of admission of the appeal by order dated 25-11-1986 :
"Whether the lower appellate Court rightly interpreted Section 168 of the M. P. Land Revenue Code, 1959?"
8. However, this Court finds that the lower appellate Court has made a substantial error of procedure in exercising its powers under Section 96 of the Code as final Court of fact giving rise to following substantial question of law. Accordingly, the following substantial question of law No. 2 has been framed by this Court in exercise of its powers Under Section 100 of the Code. Further this Court in exercise of same powers Under Section 100 of the Code, frames question No. 3 in view of retrospective amendment of the Act by Act No. 1 of 1984 which is as follows:
"2(a). Whether the Court below made substantial error of procedure in exercise of its appellate jurisdiction by placing the burden of proof on the appellant of producing on record Khasra entries of 1966-67 onwards when there was unrebutted oral evidence on record that the lease was given in the year 1966?
2(b) Whether the Court below failed to see that it is settled law that a person who is in possession of documentary evidence must produce that document to prove the fact on which he relies and cannot rely on the abstract doctrine of burden of proof?
3. What is the legal effect of subsequent amendment of the Act by M. P. Ceiling on Agricultural Holdings (Second Amendment) Act, 1976 (1 of 1984) which incorporates in the principal Act Section 6(III), 6(iv) and 6-A, 6B and 6C in the principal Act?"
9. The second question relates to defects of procedure. In the opinion of this Court, the lower appellate Court has wrongly refused to consider the oral evidence. In this case, the State of Madhya Pradesh was a party. It did not lead any evidence whatsoever. The appellant lead evidence. It is clear from a reading of explanation to Section 168 of the Code that a lease is a contractual transaction between a lessor and lessee. Since these agricultural leases are oral, it is but natural that oral evidence shall be given to prove the terms of lease. There are the three ingredients of Explanation appended to Sub-section (1) of Section 168 of the Code.
"(i) there has to be a transfer of right to enjoy land-
(a) for a particular period, which may be express or implied;
(b) for a consideration, which may be monetary or otherwise;
(ii) the consideration for the deed has to be given to the transferor by the transferee -
(a) the consideration may be for a price of money or any other thing of value;
(b) the payment has to be periodical;
(c) the consideration price may be paid or promised to be paid; according to the terms of the lease or arrangement,
(iii) such terms or arrangements should be accepted by the transferee Bhumiswami."
These have to be proved by the agreement between the parties. The trial Court relied on the oral agreement to hold that the lease started from 1966-67. There was no contrary evidence on record to rebut the oral evidence. The trial Court has referred to Kistbandi Khatoni and Khasra Panchsala Ex. P-5 of 69-70 to hold that the appellant was in possession prior to 1-1-71. The lower appellate Court, in absence of any evidence lead by the State to rebut evidence in respect of either lease or possession of the appellant assumed that lease must be from 69-70 onwards because the appellant has placed only Khasra entries of 69-70 on record. Now these Khasra entries are not made for recording private contract. These Khasra entries merely show who was the Bhumiswami of land and who was in possession of land during a particular agricultural year and what crops were shown. The entries made in the Khasra are not conclusive of any matter but they have presumptive value. Then merely because the appellant filed documents of 69-70 onwards to prove, could it be held by the Court that lease started from 69-70, even though, there was unrebutted evidence on record that lease started from 66-67. The lower appellate Court does not read that part of evidence at all on the ground that Khasra entries are the best evidence. Here the Court below totally misapprehended the legal position in respect of Section 168 of the Code. Khasra entries cannot be the direct evidence of lease. Lease can be proved by examining the parties to the lease and other witnesses present at the time of agreement. At least Khasra entries would show possession of a party to support an agreement. Such supportive evidence cannot be treated as best evidence. Thus there was a misapprehension of law on the part of learned Addl. District Judge when he thought that the best evidence was the Khasra entries of 66-67, 67-68 to prove the lease. With great respect, this Court holds that oral evidence is the primary evidence if a lease is not reduced to writing. The Khasra entries have merely supportive value and they are presumptive in nature but not conclusive. Thus there was substantial defect in procedure on the part of learned Addl. District Judge when he placed burden of proof of filing Khasra entries of 66-67, 67-68 and 68-69 upon the appellant and, therefore, drew adverse inference on the ground of non-production. Now when the first step is wrong then the corollary flowing from it (adverse inference) is bound to be wrong.
10. Moreover, there is ample authority for the proposition that a person who is in possession of document and is in a position to prove a fact by producing cannot rely on the doctrine of burden of proof. Here the State was in possession of all the Khasra entries in original. They could have produced the evidence to show that for 66-67 to 68-69 the appellant was not in possession. The respondents Nos. 1 and 2 relied on the abstract doctrine on burden of proof. In somewhat similar circumstances, the Supreme Court in the case of Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413, has held thus (at P. 1416 of AIR):
"Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Nurugesam Pillai v. Gnana Sambandha Pandare Sannadhi, (1917) Ind App 98p. 103 : AIR 1917 PC 6 at p. 8, Lord Shaw observed as follows:
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough they have no responsibility for the conduct of the suit, but with regard to the parties to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."
Thus the lower appellate Court should have examined also the documentary as well as the oral evidence. This Court, therefore, has re-examined the evidence led by the appellant. This Court does not see any reason to differ from the finding recorded by the trial Court. The evidence of Kashiram (PW 1), Aman Singh (PW 2) and Komal Singh (PW 3) has not been shaken in the cross-examination. The State did not examine any witness. Therefore, the trial Court found that oral evidence supported by Khasra entries showed that appellant was lessee since 1966-67. The entries in Khasra of 1969-70 related back to the date of lease given by unrebutted evidence. In Ambika Prasad Thakur v. Ram Eqbal Bai (dead) by his legal representatives, AIR 1966 SC 605, the Supreme Court held thus (at p. 612 of AIR):
"The presumptive of future continuance is noticed in Illustration (d) to Section 114 of the Indian Evidence Act, 1872. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, though on this point the section does not give a separate illustration. The rule that the presumption of continuance may operate retrospectively has been recognised both in India, see Anangamanjari Chowdharani v. Tripura Soondari Chowdh-rani, (1886-87) 14 Ind App 101 at p. 110(PC) and England, see Bristow v. Cormican, (1878) 3 AC 641 at pp. 669, 670, Doe v. Young, (1845) 8 QB 63 : 115 ER 798.
Thus the lower appellate Court wrongly reversed the finding of trial Court that presumption of the possession of the appellant reverted back to 1966-67.
11. The result would not be otherwise if this Court holds agreeing with the lower appellate Court that the lease was given only in 1969-70. It may be noted that Khasra entries are made under the Rules 6 and 9 framed under Section 121 of the Code. They are framed for agricultural year. Section 2(c) of the Code defines agricultural year to mean to start from 1 st July of a year. On the finding recorded by the lower appellate Court, the appellant was placed in possession at least from 1st July, 1969 and, therefore, he was in possession as a lessee of the respondent No. 3 for more than a year on 1-1-71.
12. The relevant Section 168 of the Code reads as under:
"168. Leases-- (1) (Except in cases provided for in Sub-section (2), no Bhumiswami shall lease any land comprised in his holding for more than one year during any consecutive period of three years:)"
It has to be read with Section 169(i) of the Code of relevant part of which reads as under:
"169. Unauthorised lease etc.-- If a Bhu-miswami-
(1) lease out for any period any land comprised in his holding in contravention of Section 168; or *** the rights of an occupancy tenant shall-
(a) in the case of (i) above, thereupon accrue to the lessee in such land;"
The plain construction of Section 168 of the Code would be that barring the exceptions in Sub-section (2), the Bhumiswami is prohibited from leasing any portion of holding for more than one year during any consecutive period of three years. The duration of lease should be not more than one year. The moment it exceeds more than one year even by one day during a period of three consecutive years, the lease is prohibited and the consequence of prohibition results in conferral of right of occupancy to the lessee and lessor has right of compensation only Section 190(2-A) of the Code makes the occupancy tenant a Bhumiswami by operation of law. Therefore, it would be incorrect interpretation of Section 168(1) to hold that in order to prove breach of 168(1) a lessee should be shown to be (in) possession all the three years as was done by the lower appellate Court. However, it is necessary to go little further to find out why the legislature has said that violation should be for more than one year during a period of 'three consecutive years'. Now, how the years have to be counted? They must be counted from the date of lease. It may not coincide with agricultural year being subject matter of private contract. Therefore, we must take the year here to mean the year reckoned in accordance with the British Calendar as per Section 2(48) of M. P. General Clauses Act, 1957. One year must also be counted from the date of lease. Obviously, there is no prohibition to lease for exactly one year within a period of three consecutive years. The running of years being linear and. continuous there was no need to use words "during any consecutive period of three years." Therefore, the word "consecutive" must have special significance to scheme of the things. It is well established that while construing a section, the Court is bound to give meaning to each and every word unless it is compelled to say as a result of construction that a word is surplus. The legislature is deemed not to waste its words and say anything in vain. (See Quebec Railway, Light, Heat and Power Company Limited v. Vandry, AIR 1920 PC 181 at p. 186. There are number of cases where this principle has been recognised. The Courts have rejected the contention which attributes redundancy to a statute. The Courts are reluctant to construe a statute in a manner which would imply that legislature has used surplus words for expressing its intention. It is not necessary to multiply the authorities on this point because the principle underlying this rule of construction is crystal clear. The Courts do not want to trespass on the legitimate territory of legislation which is definitely the province of legislature. Only if there be a compelling reason, where the result of construction is absurd then only Courts reluctantly treat a word or two as redundant. Recently the Supreme Court has followed this principle in case of State of Uttar Pradesh v. Radhey Shyam Nigam, AIR 1989 SC 682. In this case reliance was placed on an earlier decision of Supreme Court reported in Shri Balaganesan Metals v. M. N. Shanmugham Chetty, AIR 1987 SC 1668 and two cases reported in All England Reports, Lord Howard de Walden v. IRC, (1948) 2 All ER 825, and Hopes v. Hopes, (1948) 2 All ER 920 at p. 689 para 12 and p. 690 of report respectively. Following the aforesaid principle, the meaning of the words for more than one years during any consecutive period of three years' has to be construed. The word 'consecutive period of three years' is key to the period of leasing for more than one year. The words 'consecutive period of three years' mean a period of three years without any break or interval following in succession one after another, or uninterrupted train of three years. Thus a sort of time window of three years have been created by the legislature from the date of lease. We have then to examine whether lessor has granted lease for more than the year during this span of time. It is obvious that a lease of one year within a span of time unbroken years is not barred. However, if it spreads or spills over even by one day the consequences of breach take their own course automatically. It is also obvious that after grant of lease for one year only and talcing possession back for remainder of two years, lease can be further renewed for a period of one year. There shall be absolutely no fear of breach of Section 168 of the Code. What happens when a person leases for one year then takes back possession for next year and then again leases for the third year. If the period is counted from the initial lease then certainly there is a breach. But the legal argument would be that lease granted in the third year is not the original lease. There was an interval and therefore, continuity was broken. The second lease is for an alternate year. However, looking to the object of the statute, it would not be proper to interpret Section 168 of the Code in such legalistic manner. The beneficial construction would be that if a person leases for more than one year during three continuous years then he forfeits his rights as per Section 168 of the Code provided he does not fall within the excepted category of a person. Even if the lease is intermittent or broken within a period of one year but the total period of lease exceeds more than one year, a lessee gets the rights of occupancy and that of Bhumiswami. This interpretation commends this Court because the policy of legislature appears to be give land to the tiller, the person who would himself cultivate the land rather than person who would prefer to be the absentee landlord. Thus, we have already found on the finding recorded by the lower appellate Court, the appellant was in possession as a lessee from 1st April, 1969 to 1st April, 1970 and thereafter for period till 1-1-1971. Now on this finding also the breach of Section 168(1) of the Code was complete the moment the lease exceeded beyond 1st April, 1970. The breach was complete because during a period of three consecutive years viz. 1969, 1970 and 1971, the appellant was a lessee beyond one year. The moment the breach was committed, the appellant was entitled to claim his right of occupancy. The conferral of rights of occupancy tenant under Section 169 of the M. P. Land Revenue Code are automatic the moment there is contravention of Section 168(1). In other words, the moment a lease spills over one year during a period of three consecutive years, the right of occupancy is conferred on the lessee. The appellant becomes an occupancy tenant and consequently a Bhumiswami Under Section 190(2A) of the Code much before 1-1-71, even if the finding of the lower appellate Court be kept intact.
13. Now the only question that remains to be decided what is the effect of Section 6B, 6BB and Section 6C of the Act. We omit the consideration of Section 6A because it relates to reopening of cases and, therefore, it is not applicable to the facts of the case. That section was limited to four years from second amendment of the Act in the year 1976. It is as such of transitory character as it was enacted by Act No. 14 of 1984. However, Section 6B and 6C were inserted in M. P. Act No. 1 of 1984. It reads as under:
"6-B. Accrual of right of occupancy tenant or Bhumiswami under code to be void. Whereas a consequence of lease given by a tenure holder of land comprised in his holding in contravention of Section 168 of the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959) rights or an occupancy tenant or Bhumiswami, as the case may be, have accrued to the lease under Section 169 or Section 190 of the said Code during the period commencing from 1st January, 1971 and ending on the appointed day, accrual of such rights shall be void and of no legal effect. Whatsoever for the purposes of this Act, notwithstanding anything contained in this Act or any other law for the time being in force or any judgment, decree or order of any Court.
6-C. Bar of Jurisdiction of Civil Court in matters falling under Section (6-B).-- Notwithstanding anything contained in Sub-section (4) of Sub-section (5) of Section 11 no Civil Court shall entertain any suit in respect of title to land comprised in holding of a holder to which the provisions of Section (6-B) apply."
Section 6-BB was inserted by Act No. 14 of 1984 and it reads as under:
"6-BB. Declaration of surplus land in cases to which Section 6B apply.-- Where as a result of operation of Section 6-B, there is an addition to the quantum of land held by a holder prior to such operation so as to necessitate declaration of surplus land, then notwithstanding anything contained in this Act, the competent authority shall: in declaring the surplus land specify the land in the following order:--
(i) the land held by such holder other than the land to which Section 6-B relates;
(ii) if the land so held by him falls short of the requisite surplus the entire land so held and so much of the land to which Section 6-B relates as falls short of the requisite surplus."
All these sections have retrospective effect. We must, therefore, pointedly consider the effect of Section 6-B which is ultimately key to interpretation of Section 6BB and Section C of the Act. An analysis of Section 6B would reveal that it has following ingredients:
i) There must be conferal of rights of occupancy tenant or Bhumiswami to a person as a consequence of breach of Section 168 of the Code:
ii) That conferal must be during a period commencing from 1st day of January, 1971 and ending on appointed day.
iii) The accrual of such rights would be void notwithstanding anything contained in the Act or any other law for the time being in force of any judgment, decree or order of any Court.
Therefore, assuming that there was breach of Section 168 of the Code of resultant conferal of rights of occupancy or Bhumiswami, we must also find out in order to void the automatic operation of Section 168 of the Code whether there was accrual of rights between 1st day of January and the appointed day. The appointed day is the date of commencement of M.P. Ceiling on Agricultural Holdings (Amendment) Act, 1972 as defined under the Act. That comes to 7th March, 1974. Thus Section 6BB of the Act applies between the narrow limit of time between 1st January, 1971 to 7th March, 1974. If accrual is between this period then Section 6B of the Act would apply. We need not go further because Section 6BB of the Act is consequent section to Section 6B. If Section 6B of the Act does not apply then Section 6BB of the Act would not be applicable. It is clear from the opening words of Section 6BB of the Act. Section 6C of the Act is also consequential. It bars jurisdiction of Civil Court despite Section 11(4) and 11(5) of the Act where Section 6B of the Act applies and mandates that Civil Courts jurisdiction would be taken away in respect of title of suit to which Section 6B applies. Thus the jurisdiction of Civil Court is barred only in respect of those cases where Section 6-B of the Act applies. We have already noticed if accrual of right is between 1st January, 1971 and appointed day then only Section 6B of the Act applies. If the accrual of right of occupancy or Bhumiswami is not between the narrow span of time then Section 6B would not apply. Consequently Section 6-BB or Section 6-C of the Act shall also not apply. Therefore, the suit under Section 11(5) of the Act would not be barred if Section 6-B does not apply. It would not bar any judgment or decree where Section 6-B of the Act does not apply. In this case, it has been found as a matter of fact or in the alternative as a matter of interpretation of Section 168 of the Code read with Section 169 thereof that the occupancy rights were conferred on the appellant prior to 1st January, 1971, Thus Section 6-B of the Act has no application. Secton 6-C of the Act would not bar the suit. The rights to appellant as an occupancy tenant and consequently Bhumiswami were conferred prior to 1st January, 1971. The appellant thus escapes the operation of Section 6-B and Section 6-C of the Act. The suit is not, therefore, barred by Section 6-C of the Act. The suit is thus maintainable. There were further amendments in the Act by Act No. 8 of 1989 which came into force on 1st November, 1988. The validity of this Act was challenged in the case of Basant Kumar v. State of M.P., 1990 MPLJ 4 : (AIR 1990 Madh Pra 160). This Court struck down Section 11A(2) and (3), Section 11-B and Section 42-A and also provision of Sections 41 and 42 of the amending Act. The amended power took away the jurisdiction of Civil Court from 1-11-1988 and conferred that jurisdiction to revisional and appellate jurisdiction of Revenue Courts by amending Section 11(5). Therefore, by consequential amendment of Section 46 of the Act, the jurisdiction of Civil Court was barred. However, this amendment does not affect the pending suits after decision of this Court (supra). Section 11(5) of the Act has not been amended retrospectively. It does not affect pending suits. Therefore, bar of newly amended section would not apply. The old section as it stood prior to this amendment was subject-matter of interpretation by a Full Bench of this Court in Vijaya Singh v. Competent Authority (S.D.O.), Tarana, 1977 MPLJ 614 : (AIR 1978 Madh Pra 72). This Court rendered its opinion as follows (at p. 75 of AIR):
"In view of this decision it is clear that the jurisdiction of the Civil Court in respect of question of title could not be taken away without an express provision talcing away the jurisdiction of the Civil Court with regard to such a question. But it also must be understood that when under Sub-section (4) of Section 11 of the Ceiling Act the competent authority chooses to decide a question of title summarily, then either party to the proceeding before the competent authority can only file a civil suit within the prescribed period under subsection (5) of that section. The result therefore is that if the competent authority has not decided the question of title under subsection (4), then the Civil Court has jurisdiction to entertain a suit independently of the provisions contained in Section 11 of the Ceiling Act. Similarly, if there are no proceedings before a competent authority, then too, the Civil Court will have jurisdiction to entertain a suit pertaining to the question of title. But if there are proceedings before the competent authority and an order is passed under subsection (4) of Section 11 deciding the question of title summarily, then the Civil Court will have jurisdiction only in a suit as contemplated under Sub-section (5) of Section 11 of the Ceiling Act."
Thus the view of this Court was that apart from Section 11(5) of the Act the question of title could be decided by a Civil Court. Any party could file suit independently of Section 11, if there is no decision under Section 11 (4) of the Act against him as a party. When the appellant filed the suit, he filed it under Section 11 (5) of the Act. The suit was maintainable. The retrospective amendment in Section 6-B does not take away the right of Civil Court to decide the controversy as the matter is not covered by it and, therefore, Section 6-C is inapplicable. There is no retrospective amendment in Section 11(4) and Section 11(5) of the Act from the date of the suit. The amendment would not cover a pending suit. Therefore, this appeal which was pending in this Court would not be affected.
14. In view of the aforesaid discussion, this Court comes to conclusion that the appeal filed by the appellant, must succeed. Accordingly, the judgment and decree of the lower appellate Court are set aside and that of trial Court are restored. The appeal is thus allowed. The appellant is entitled to costs through out. Counsel's fee in this Court is fixed at Rs. 250/-.