Susanta Mondal v. Probodh Ranjan Majumder — 1975 DIGILAW 105 (CAL)

JUDGMENT The judgment of the Court was as follows ;- Sen Gupta, J. This Rule arises out of an application under Article 227 of the Constitution of India directing the opposite' parties to show cause why the order dated 12.3.73 passed by Sri K. Dikshit, Sub-Divisional Officer, Sardar, Krishnagore, in L. R. Appeal No. 1 of 1971, reversing the order dated 28.5.70 passed by the Bhagchas Officer, Chapra, in Bhagchas Case No. 20 of 1966, should not be set aside. 2. The question involved in this case rests on a short point whether the petitioners are the bhagidars under the opposite parties. 3. At the instance of the opposite parties the Bhagchas Case No. 20 of 1966 was started. They asserted that the petitioners were their bhagidars in respect of lands measuring 3.52 acres in mouza Mohatput recorded in plot No. 2548 within C.S.Khatian No. 3391; that they defaulted in delivering bhag produce for the years 1270 to 1372 B.S. They claimed a sum of Rs. 2, 279/- on that account and they further prayed for eviction of the petitioners by terminating the bhag settlement. 4. The Bhaghchas Officer dismissed the claim of the opposite parties holding, inter alia, that the opposite parties failed to establish bhag settlement of the lands in question with the petitioners and that the dispute being title in the suit land raised by both the parties was to be decided in the civil court in a regular title suit. 5. The opposite parties being aggrieved by the said decision preferred L.R. Appeal No.1 of 1971 in the court of the Sub-divisional Officer, Sadar, Krishnagore. The Sub-divisional Officer allowed the said appeal and passed an order directing the petitioners to pay the price of their share payable for the years 1371-1372 B.S. amounting to Rs.1, 616.50. In this Rule the said order has been challenged by the petitioners. 6. Mr. Mukherjee, learned Advocate for the petitioners. submits that the finding of the SDO that the petitioners are the bhagidars under the opposite parties is not based on any materials rather on surmises and speculation; not only that the SDO has misdirected himself to legally interpret the entries in the RS record of rights. It has further been contended that the SDO has committed certain errors which are apparent on the face of the record; the petitioners filed. It has further been contended that the SDO has committed certain errors which are apparent on the face of the record; the petitioners filed. Title Suit No. 336 of 1964 in the first court of Munsif at Krishnagore but they withdrew the suit. That suit, according to the petitioners was filed under wrong advice as they were in actual possession of the same, that they thought it prudent not to proceed with the suit the said fact of non-prosecution to be going against the petitioners. In short, it has been urged that the finding of the SDO was illegal and against the weight of evidence and without jurisdiction. 7. Mr. Roy, learned Advocate for the opposite parties supports the finding of the SDO. The following facts and circumstances have been pointed out by Mr. Roy in order to support his contention that the order passed by SDO was legal and valid. Our attention has been drawn to the entries in the RS record of rights. It has been referred to in that connection and it has been suggested that the same entries clearly showed that lands in question were in khas possession of the opposite parties and therefore subsequent possession of the same by the petitioners must be on account of the taking settlement of the same as bhagidars. The said contention is not acceptable for the following reasons; that the possession of the petitioners as rightful owners of the same under the circumstances mentioned by them may be a possibility, such a possession may be the possession of a trespasser or that of licensee. That itself shows mere possession of the lands by the petitioners. Similar other cogent evidence are required to draw an inference of bhag settlement. The said possession by itself is not enough to show that the petitioners must be possessing the same as bhagidars. Next, the entries in the RS Record of Rights clearly negative the theory of bhag settlement. The presumption of the said entries cannot be rebutted by the entries of C.S. Record of Rights which showed that the opposite parties were in exclusive possession. When there are competition between the two entries, one in the old record of rights and another in the recent one, the Jailer would prevail. Similar is the view expressed by M. C. Ghose, J: in the case of (1) Bhupendra Krishna Ghose v. Abdur Rahaman & Ors. When there are competition between the two entries, one in the old record of rights and another in the recent one, the Jailer would prevail. Similar is the view expressed by M. C. Ghose, J: in the case of (1) Bhupendra Krishna Ghose v. Abdur Rahaman & Ors. reported in 61 CLJ 18. Similar is the view expressed by their Lordships in the case of (2) Sri Raja Durga Singh of Solon v. Tholu and others, reported in AIR 1963 SC 361 . In the recent R. S. Record of Rights plot no. 2548 has been recorded in the names of the petitioners and those of the opposite parties in moiety share. That will appear from the entries appearing in khatian Nos. 3391 and 6412. The presumption arising out of the those entries goes against the assertion of the opposite parties that the lands were being held by the petitioners in bhag. On the materials on record the said presumption cannot be said to have been rebutted. Mr. Roy next drew our attention to the fact that there were no materials to show any foundation or basis of such entries. In support of the said contention our attention has been drawn to some of the documents such as karchas, muri books filed on behalf of the petitioners to prove that they took settlement of the lands from the zemindars and submitted that those documents fell far short to establish the identity of the lands taken settlement of. The opposite parties' definite case in that respect is that those documents were serious one created only for the purpose of this case. These are the contentions which require further consideration in a properly constituted title suit. It is too much to expect, in a proceeding like this, the proper determination of such question. Moreover, the presumption remains attached to such entries even if the parties in whose favour the presumption is available failed to show the foundation of the same. Similar view has been expressed by Roxburgh J. in the case of (3) Rani Harshamukhi Dasi v. Kshitindra Deb Roy & ors. reported in 47 CWN 662. Moreover, the presumption remains attached to such entries even if the parties in whose favour the presumption is available failed to show the foundation of the same. Similar view has been expressed by Roxburgh J. in the case of (3) Rani Harshamukhi Dasi v. Kshitindra Deb Roy & ors. reported in 47 CWN 662. On a similar point being raised in the case of (4) Jatindra Nath Malik v. Sushilendra Nath Palit in reported in 69 CWN 210, Laik, J. held: "The principle of presumption of correctness of the entries in the record of rights finally published under the Bengal Tenancy Act, is applicable to the record of rights published under the West Bengal Estates Acquisition Act, 1953 and it is not for the parties relying on such presumption to prove the foundation or basis of the correctness of the entries of the record of rights." We have expressed our views in the same line. Mr. Mukherjee's contention is that there was no dispute that when a plaintiff withdraws from a suit without permission of the Court, he is precluded from instituting a fresh suit in respect of the same subject matter and against the same defendant. But this bar does not extend to his taking the sairi plea as a defence in any suit brought either by the defendant or by any other person. We agree with, the said contention of Mr. Mukherjee ; the petitioners are in possession in the suit land, the opposite parties as plaintiffs have brought this suit for the recovery of the price of bhag produce and for getting back the possession of the suit land after terminating the barga settlement. Accordingly it, is seen that the position of the petitioners is that of a defendant resisting the claim of the plaintiff. For the reasons stated we hold that such a plea is available in a proceeding like this where they figure as defendants. We have, therefore, to consider the scope of such a proceeding. 8. Mr. Roy submits that the application being under Article 227 of the constitution of India its scope is very limited, but the power under Article 227 is wider than under Section 115 of the Code of Civil Procedure and may be used even where Section 115 is not applicable. 8. Mr. Roy submits that the application being under Article 227 of the constitution of India its scope is very limited, but the power under Article 227 is wider than under Section 115 of the Code of Civil Procedure and may be used even where Section 115 is not applicable. In this connection we may refer to the decision in the Case of (5) Satyanarayan Laxinarayan Hegde & Ors v. Mallikarjun Bhavanappa Tirumale, reported ill AIR 1960 SC 137 wherein their Lordships held: "Article 227 of the Constitution corresponds to section 107 of the Government of India Act, 1915. However wide it may be than the provisions of section lis of the Code of Civil Procedure, it is well established that the High Court cannot, in exercise of its power under that section, assume appellate powers to correct every mistake of law. Where there is no question of assumption of excessive jurisdiction or refusal to exercise Jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice, but, if anything. it may merely be an erroneous decision which error, not being apparent on the face of the record, cannot be corrected by the High Court in revision under section 115 of the Code of Civil Procedure or under Article 227 of the constitution," 9. While dealing with the scope of the application under Article 227 of the Constitution in the case of (6) Aswini Kumar Pramanik v. Dominion of India, reported in AIR 1952 Cal 251 , Harries, C.J. and Das, J. held that interference under Article 227 should only be resorted to rare cases where real injustice would be done if the court could not interfere under section 115 of the Code of Civil Procedure. 10. Tested with the above principle let us proceed to see whether the Sub-divisional Officer assumed excessive jurisdiction not vested in him to come to his conc1usion. In the instant case the moot point for consideration is whether the petitioners are the Adhiars or not. This question of title in the land became not a question of primary importance. Even a person possessing lands under imperfect title can induct an Adhiar in the said land and such a contract between them is complete and either of them cannot get rid of the same. This question of title in the land became not a question of primary importance. Even a person possessing lands under imperfect title can induct an Adhiar in the said land and such a contract between them is complete and either of them cannot get rid of the same. To such a case therefore the primary question is the question of proof of the existence of an agreement of bhag settlement. 11. While considering the same the Special Officers should confine themselves within that scope. But any attempt to transgress such a limit will authorise this court to interfere and correct the same. In the instant case the Sub-divisional Officer throughout tried to find title of the parties in the suit land and while so doing found the same with the opposite parties. There the S.D.O. acted in excess of his jurisdiction empowering this Court to interfere and to correct the error arising out of the same. 12. For the reasons stated we hold that this Court has jurisdiction to interfere and correct the mistake to see that no failure of justice is done. " - 13. After hearing the parties and going through the records we are of the view that the Bhagchas Officer very rightly held that the opposite parties failed to prove the Bhag Settlement in respect of the lands in question and that the point at issue as raised by the parties should be decided in a title suit in the Civil Court. 14. Agreeing with the said finding we make this Rule absolute. The order passed by the S. D.O. is set aside and the claim of the opposite parties for the price of the Bhag produce is dismissed. We, however, direct the parties to bear their respective costs. Roy J. I agree.