Satish Chandra Naskar v. Upendra Nath Biswas — 1977 DIGILAW 294 (CAL)

Judgment Six Plots comprised in Khatian No. 1, Mouza Ganga Jowara, P.S. Sonarpore, District 24-Parganas are subject-matters of the present appeal. Previously, two groups of Roychowdhury landlords were in khas possession of these plots. In the C.S. records these plots were described as with further remarks. On 1st Chaitra, 1353 B.S. corresponding to 15th March, 1947, two brothers Palan Naskar, the father of the plaintiffs, and Kartick Naskar by executing two 'kabuliats had taken settlement of these plots from the said two groups of Roychowdhury landlords. On 9th Falgoon, 1358 B.S. Kartick sold his interests to said Palan Naskar. Subsequently, one group of landlords headed by Sailendra Kumar Roychowdhury had sued Kartick Naskar and Palan Naskar for arrears of rent and had obtained a decree. The decree-holder had put the said decree into execution. On 10th June, 1954, one Panchanan Ghosh had auction purchased the suit property., On 22nd Bhadra, 1361 B.S. corresponding to 8th September, 1954, the plaintiffs purchased the suit property from the said Panchanan Ghosh. 2. The plaintiffs brought a suit, inter alia, for declaration of title and for further declaration that the entries in the record of rights in respect of the disputed plots were erroneous, for confirmation of possession and for permanent injunction. The defendants contested the suit, inter alia, claiming that the villagers had been using the disputed plots for grazing their cattle as of a right from time immemorial and that they had acquired a customary right of pasturage over the suit property. The learned Munsif, 1st Additional Court, Alipore dismissed the suit, inter alia, holding that the presumption of the correctness of the record of rights stood unrebutted and even assuming that the predecessors of the plaintiffs had taken settlement, they had taken the same subject to the customary rights of the members of the public. The plaintiffs being aggrieved by the said decision preferred an appeal. The learned Additional District Judge, 4th Court, Alipore, allowed the said Appeal in part. He ordered that the suit be decreed in part and the plaintiffs' title to the disputed lands be declared and their possession be confirmed subject to the 'easement right of pasturage' of the villagers of Ganga Jowara from the months of Ashar to Magh every year. The defendants were ordered to be restrained from interfering with such possession of the lands by the plaintiffs. The defendants were ordered to be restrained from interfering with such possession of the lands by the plaintiffs. The plaintiffs have' preferred this Second Appeal, inter alia, contending that the Lower Appellate Court had erred in law in passing the above qualified decree. 3. Both the trial Court and the Lower Appellate Court have concurrently found that the villagers of Ganga Jowara had a right of pasturage by immemorial custom over the suit property. The defendants, witness Nos. 1 and 2 admitted that their cattle grazed on the suit lands from transplantation to harvesting time and these witnesses did not even claim such right of pasturage throughout the year. The plaintiffs as owners were entitled to exercise their tenancy rights subject to the customary right of pasturage of the villagers of Ganga Jowara enjoyed from Ashar to Magh each year. The decree passed by the Lower Appellate Court fully satisfy the principles of law relating to customary right to pasturage ennunciated by G.N. Das and Lahiri JJ. in (1) Nani Gopal Dutta and Others v. Kshitish Chandra Banerjee and Another, AIR 1952 Calcutta 108, which was placed by Mr. Mitter Learned Advocate for the appellants. The Division Bench held that the villagers of a particular village can claim right bf pasturage over the banks of a tank as a customary right. But such right of pasturage based on custom has to be strictly construed and all the essentials of a valid custom must be fulfilled. The exercise of the right of pasturage by the villagers over the banks of a tank does not entirely deprive the owner of the right to use his servant heritage. Such custom would be reasonable. 4. The only point in this appeal is whether or not the said customary right of pasturage now stands annulled by reason of publication of the Notification under S. 4 of the West Bengal Estates Acquisition Act read with S. 5 of the said Act. The plaintiffs were the raiyats in respect of the suit plots. Upon publication of the Notification under S. 4, with effect from 1st Baisakh, 1361 B.S. the estates and rights of Roychowdhurys, who were the landlords, vested in the State. The plaintiffs were the raiyats in respect of the suit plots. Upon publication of the Notification under S. 4, with effect from 1st Baisakh, 1361 B.S. the estates and rights of Roychowdhurys, who were the landlords, vested in the State. But in terms of S. 5(1)(c) of the West Bengal Estates Acquisition Act until the provisions of Chapter VI were given effect to, the plaintiffs as raiyats began to hold the suit lands directly under the State "as if the State had been the intermediary and on the same terms and conditions as immediately before the date of vesting". It has been concurrently found by the two Courts of fact that in 1353 B.S., the plaintiffs were granted settlement of the suit plots subject to the aforesaid customary right of pasturage of the residents of village Ganga Jowara. Until Chapter VI of the West Bengal Estates Acquisition Act came into force, the plaintiffs who were raiyats in view of the' express provisions of S. 5(1)(c) continued to hold the suit lands on identical terms and conditions. 5. With effect from 10th April, 1956, Chapter VI of the West Bengal Estates Acquisition Act came into force in all the districts of West Bengal. On the issue of the Notification under S. 49 of the West Bengal Estates Acquisition Act, the Chapters II, III, V and VII subject to such modifications as might be necessary applied mutatis mutandis to ralyats and under-raiyats as if they were intermediaries and the land held by them were estates and a persons holding under a raiyat or an under-raiyat were raiyats for the purpose of Clauses (c) and (d) of S. 5(1). 6. In this case, the plaintiffs claim that they had continued as raiyats under the State. In other words, the plaintiff's case is that they were entitled to retain and in fact, they had retained the suit lands under S. 6 of the West Bengal Estates Acquisition Act. Therefore, they are not entitled to contend that their retained lands had been freed of the customary right of pasturage hitherto enjoyed by the residents of village Ganga Jowara. Section 5(1) of the Act lays down the effect of a Notification under S. 4 vesting estates and the rights of intermediaries in the estates. Not only all the rights owned by intermediaries in the estates are extinguished but the vested estates are freed from all encumbrances. Section 5(1) of the Act lays down the effect of a Notification under S. 4 vesting estates and the rights of intermediaries in the estates. Not only all the rights owned by intermediaries in the estates are extinguished but the vested estates are freed from all encumbrances. But S. 5(1) does not operate to release retained properties of the encumbrances, if any, Venkatarania Ayyar, J. speaking for the Court in (2) Collector of Bombay v. Musserwanji Rattanji Mistri and others, AIR 1955 SC 298 , with reference to the scope of S. VIII of the Land Acquisition Act, 1857 had observed "............When the Government acquires lands under the provisions, and with a view to put them to that purpose, the government acquires the sum total of all private interest in them". Their Lordships, however, held that if the Government has itself an interest in the land it has only to acquire the other interests outstanding therein, so that it might be in a position to pass it on absolutely for public user. These observations may be made with reference to vesting under the West Bengal Estates Acquisition Act. The same results in State acquisition of estates, of rights of intermediaries therein and of certain rights of raiyats and under-raiyats and of the right of certain other persons in lands comprised in estates. When an intermediary is allowed to retain, no question of freeing the retained land of incumbrances upon the said retained land could arise. 7. Section 6(1) starts with the. expression "notwithstanding anything contained in Ss. 4 and 5", and then states that an intermediary except in cases mentioned in proviso to sub-s. (2) shall be entitled to retain different categories of lands specified in Clauses (a) to (1) of sub-s. (1). Further, in terms of S. 6(2) of the Act read with Rule 4(3) of the West Bengal Estates Acquisition Rules, the plaintiffs have been holding the suit lands on the terms and conditions mentioned in Ss. 23, 23A, Clause (a) of S. 25, Ss. 26, 26B, 26C, 26G, Ss. 52 to 55, sub-s. (1) and (2) of S. 56, Ss. 65 and 67, sub-s. (1) of S. 58, Ss. 73, 86A, sub-s. (1), (2) and (3) of S. 87, so much of S. 159 as does not relate to protected interests, Ss.161, 162, 163, 166, sub-s. (1), (2) and (3) of S. 167, S. 168, Ss. 52 to 55, sub-s. (1) and (2) of S. 56, Ss. 65 and 67, sub-s. (1) of S. 58, Ss. 73, 86A, sub-s. (1), (2) and (3) of S. 87, so much of S. 159 as does not relate to protected interests, Ss.161, 162, 163, 166, sub-s. (1), (2) and (3) of S. 167, S. 168, Ss. 169 to 171 and Ss. 173 to 177 of the Bengal Tenancy Act, 1885. 8. Thus, the right of the plaintiffs in the suit lands did not vest, Section 5(1)(a) of the West Bengal Estates Acquisition Act cannot operate to automatically annual the customary right of pasturage upon such retained land. It may be pointed out that such customary right of pasturage will not be covered by S. 161(a) of the Bengal Tenancy Act because such right was not created either by the landlords or by the plaintiffs as tenants. The West Bengal Estates Acquisition Act neither expressly nor by necessary implication provides for freeing or annulling such customary rights of pasturage over the retained lands of the raiyats. The definition of the expression "incumbrance" in S. 2(h) is as follows:- "incumbrance" in relation to estates and rights of intermediaries therein does not include the rights of a raiyat or of an under-raiyat or of a. nonagricultural tenant, but shall, except in the case of land allowed to be retained by an intermediary under the provisions of Section 6, include all rights or interests of whatever nature, belonging to intermediaries or other persons, which relate to lands comprised in estates or to the produce thereof. This definition of "incumbrance" in S. 2(h) thus by necessary implication provides that in case of land allowed to be retained by intermediary under provisions of S. 6, rights and interests of whatever nature belonging to intermediaries or other persons which relate to retained lands or to the products thereof are not incumbrance. Therefore, in case any intermediary and raiyat are allowed to retain under S. 6, any land, such land will continue to be held subject to the customary right of pasturage. 9. The decision of Khanna and Krishna lyer, JJ. in (3) State of West Bengal v. Sudhir Chandra Ghosh & Others, AIR 1976 SC 2599 is distinguishable from the present case. 9. The decision of Khanna and Krishna lyer, JJ. in (3) State of West Bengal v. Sudhir Chandra Ghosh & Others, AIR 1976 SC 2599 is distinguishable from the present case. In the said case an estate in village Vadurerpati Maodhabpore in the district of Hooghly had vested in the State upon publication of a Notification under S. 4 of the West Bengal Estates Acquisition Act. The Supreme Court in State of West Bengal v. Sudhir Chandra Ghose & Others (supra) held that after such vesting the customary right of pasturage of• the villagers being an incumbrance within the meaning of S. 2(h) of the West Bengal Estates Acquisition Act had been terminated by the impact of S. 5. The Supreme Court reversed the decision of Chatterjee, J. reported in ILR 1967(2) Calcutta 386. It would be partinent to point out that in the above case the Supreme Court held that by reason of S. 5(1) read with S. 2(h), the said customary right of pasturage could not be exercised in respect of vested-lands. The Supreme Court, however had no occasion to consider whether or not such customary right even after vesting would subsist in respect of the retained lands of the intermediaries. I have already pointed out that S. 2(h) expressly makes exception in case' of retained lands of intermediaries. Further, the statute does not expressly or by necessary implication provide for extinguishment of customary right of pasturage over the retained lands. The decision of the Supreme Court in State of West Bengal v. Sudhir Chandra Ghosh & Others (Supra) in an authority for the proposition that in relation to vested lands of intermediaries, the right of pasturage is an incumbrance and persons enjoying such rights are "other persons" within the meaning of S. 2(h). Therefore, the said customary right in respect of vested lands have been extinguished. 10. In the result, I conclude that the suit properties are retained lands of the plaintiffs and the same had not been freed of the customary right of pasturage during the cultivation season enjoyed by the villagers of village Ganga Jowara. 11. The Lower Appellate Court, has inaccurately described the defendant's right of pasturage both as an easement and as a customary right. G.N. Das and Lahiri, JJ. 11. The Lower Appellate Court, has inaccurately described the defendant's right of pasturage both as an easement and as a customary right. G.N. Das and Lahiri, JJ. in Nani Gopal Dutta & Others v. Kshitish Chandra Banerjee (supra) correctly pointed out that an easement right is a privilage annexed to some property to be enjoyed over some other property. A right of pasturage claimed by the villagers is claimed by them as residents of a defined locality; there is no dominant tenements in such a case to which the right can attach. A presciptive right of easement is wholly untenable where the villagers claim a right of pasturage. Such right of pasturage is based on custom. 12. Accordingly, I dismiss the appeal and affirm the decree of the Lower Appellate Court, subject to the modification that the plaintiffs' title to the disputed lands shall be declared subject to the customary right of pasturage of the villagers of Ganga Jowara therein from the transplantation to harvesting season, that is, from the month of Ashar to Magh every year, and the defendants would be so restrained in the manner ordered by the Lower Appellate Court. There will be no Order as to costs. Appeal dismissed subject to modification.