Dulal Chandra Ghosh v. Kalipada Ghosh — 1979 DIGILAW 181 (CAL)

ORDER The petitioners and the respondent. No. 1 Kalipada Ghosh are all heirs of one Basanta Kumar Ghosh, deceased. Respondent no. 1 is the son of Buanta by his pre-deceased first wife. Petitioner no. 4 is the wife of Basanta and the other petitioners are his sons and daughters. 2. On 6th July, 1973 respondent no. I made an application before the Junior Land Reforms Officer, Habra-II (hereinafter referred to as (J.L.R.O.') for recording himself as a bargadar under his father Basanta in respect of agricultural land measuring 1.28 acres of land in Dag no. 1852, 2640, 2641, 1708 and 2716 under Khatian no. 1093. Mouza: Guma, P.S, Habra, Dist. 24-Parganas under the Land Reform. Act, 1955 whereupon the laid J.L.R.O. started-Misc. Case No. 3/73-74 and passed a judgment and order on September 10, 1973 declaring the respondent no.1 as bargadar under his father Basanta. It appears that on September. 1973 Basanta instituted a suit being Title Suit No. 427 of 1973 in the Court of the learned Munsif at Barasat for declaration of title and injunction in respect of the said land and got an injunction restraining the J.L.R.O from recording the respondent no. 1 as bargadar and the respondent no.1 from interfering with Basanta's possession in respect of the said land. It further appears that Basanta made an application in this Court under Article 226 of the Constitution being C.R. No. 1452(W) of 1975 challenging that the said J.L.R.O. had no jurisdiction to record the respondent no.1 Kalipada as a bargadar under his father Basanta. By the judgment and order dated 11th January, 1978 Amiya Kumar Mookerji, J. dismissed the said application on the ground that J.L.R.O. was not competent to pass any order for recording under S. 50 of the Land Reforms Act. His Lordship however made it clear that the parties would be at liberty to settle the disputes over the possession of the land in appropriate forum. Thereafter, Basanta died on 16th June, 1978. After Basanta’s death the respondent no..1 Kalipada made an application under S. 18(1) of the Act for protection against the eviction by the owners and for recording his name as bargadar in respect of the aforesaid land before Bhagchas Officer, Habra-II, Guma, 24 Parganas. Thereafter, Basanta died on 16th June, 1978. After Basanta’s death the respondent no..1 Kalipada made an application under S. 18(1) of the Act for protection against the eviction by the owners and for recording his name as bargadar in respect of the aforesaid land before Bhagchas Officer, Habra-II, Guma, 24 Parganas. The Bhagchas Officer by his order dated April 21, 1978 held that the respondent No.1 kalipada had been actually cultivating the land for last 22 years as bargadar under his father Basanta who died on June 16, 1978. By the said order the respondent no.1 Kalidas was declared as a bargadar in respect of the land stated in the schedule and it was further ordered that his barga cultivation was not to be disturbed by the owners. The respondents in the said proceedings i.e. the petitioners herein preferred an appeal against the said order of the Bhagchas Officer in the court of the Executive Magistrate, Barasat who by his judgment and order dated September 12, 1978 dismissed the said appeal. The Executive Magistrate held as follows : - “ In discussion the main grounds of appeal. I though agree with the lawyer for the appellants that possession by some of the co-sharers amounts to possession by all the co-sharers, yet I find the Bargadar has been made statute in L.R. Act, and his right of possession cannot be over rided by the normal proposition of law for the co-sharers. In this case the respondent is no doubt a co-sharer of the suit land, but he is in addition claiming himself a Bargadar. So the general view of proposition of law will not be admissible in this case" 3. In this application under Art 226 of the Constitution the petitioner challenge the aforesaid orders of the Bhagchas Officer and the Executive Magistrate, Barasat. 4. On 17th November, 1978 when this application was moved I did not issue Rule Nisi but directed the petitioners to move the application upon notice to the respondents. Pusuant to notices served upon them the respondents appeared and direction was given for filing of affidavits. Only the respondent no.1 Kaliplda Ghose has filed an affidavit-in-opposition in this case. Although this application is now contested on behalf of the State of West Bengal yet no affidavit-in-opposition has been filed on its behalf. Pusuant to notices served upon them the respondents appeared and direction was given for filing of affidavits. Only the respondent no.1 Kaliplda Ghose has filed an affidavit-in-opposition in this case. Although this application is now contested on behalf of the State of West Bengal yet no affidavit-in-opposition has been filed on its behalf. 5 The main contention of the petitioner is that 'bargadar' and 'owner' are two distinct and separate entities. It is submitted that inasmuch as after tile death of B Hanta the said land devolved upon his heirs who are the petitioners and the respondent no. 1, and they have become co-sharers and as the possession of one co-sharer amounts to possession by all the co-sharer, the respondent no. 1 cannot be said to be a bargadar in respect of the said land but he is only a co-sharer having possession of the land for himself and for his other co-sharers. In other words, there is merger of interests viz., that of co-sharer and bargadar in respect of the entire land. It is further submitted that in the instant cue there is personal cultivation by a Co-owner and that means the possession and cultivation by one co-sharer on behalf of under co-sharers and that cultivation cannot be said to be a cultivation by a bargadar. It is the submission of the counsel that the principle of merge applicable in the case of lessor and lessee does not apply to the case of bargadar and owner. It is further submitted that the respondent no.1 Kalipada himself being one of the co-owners of the disputed land cannot be a bargadar under the petitioners who are the other co-owners. Reliance has been placed on the cases of Kaviraj Basudevnnand v. Harhar Gir & ors. AIR 1974 SC 1991 and Johuri Sah & ors. v. Dwarka Prasad Jhunjhunwaia & ors. AIR 1967 SC 109 . 6. Counsel appearing for the Slate of West Bengal has referred to S. 111 D of the Transfer or Property Act, 1882 and S. 22 of the Bengal Tenancy Act, 1885 and submitted that when a bargadar purchases the entire land from the owner or when the owner's interest in the entire land in any way vests in the bargadar then he ceases to be a bargadar. In the instant case after the death of the owner i.e., Basanta the bargadar under him i.e. the respondent no. In the instant case after the death of the owner i.e., Basanta the bargadar under him i.e. the respondent no. 1 Kalipada became entitled to only a share in the disputed land. Therefore, only to the extent of Kalipada's share in the land there is a merger of two interests viz., that of owner and bargadar. But regarding the interest of other co• owners there cannot be any question of such merger. Regarding other co-owners i.e., the petitioners, the respondent no. 1 Kalipada continued as a bargadar. It is submitted that right of a bargadar is a personal right to cultivate the land of another person on condition of delivering a share of produce of such land to that person and the right of cultivation after bargadar's death continues in favour of his lawful heirs. In this connexion Counsel has referred to S. 2(2) and S. 15A of the Land Reforms Act, 1955. 7. Counsel for the respondent no.1 Kalipada has submitted that in the instant case there is a devolution of owner's interest in the disputed land in favour of different persons. So far as the respondent no.1, who has been and is a bargadar of the entire land, his ownership is only in respect of a defined share. Therefore, there cannot be any question of merger of the interests of their owners with that of the bargadar in the instant case. It is further submitted that under Land Reforms Act no termination of cultivation by a bargadar is permissible except on the grounds as specified in S. 17 of the Act and in this connexion reference has been made to S. 17(1)(a) and (d) of the Act. Counsel has further submitted that the respondent no.1 Kalipada not being included in the family of the petitioners as defined in the Act his interest as bargadar is separate and distinct from that of the other co-owners. 8. In the instant case facts are not disputed. There is no dispute that the respondent no. 1 Kalipada was a bargadar under his late father Basanta in respect of the disputed land. Upon Basanta's death the entire land was devolved upon his heirs who are the petitioners and the respondent no.1 Kalipada. Each of the heirs became entitled to and has a defined share, viz., 1/10th share in the disputed land. 1 Kalipada was a bargadar under his late father Basanta in respect of the disputed land. Upon Basanta's death the entire land was devolved upon his heirs who are the petitioners and the respondent no.1 Kalipada. Each of the heirs became entitled to and has a defined share, viz., 1/10th share in the disputed land. The question, therefore, is what happened to Kalipada's right to cultivate the disputed land as bargadal after his father's death. Was there a merger of interest of the owner with that of bargadar in the disputed land and if so, to what extent? 9. According to the petitioners bargadar's interest in the disputed land merged with the interest of all the co-owners and the possession of the respondent no.1 of the disputed land is the possession of all the other co-owners. Contention of the respondents on the contrary, is that after Basanta's death so far as the other co-owners are concerned the right of the respondent no. 1 Kalipada as bargadar remained unaffected 'and the merger of interest is in respect of his share only. In Case of lessor and lessee under the Transfer of Property Act when the interest of the lessor and lessee in the whole of the property should become vested at the same time in one person in the same right, i.e., to say there must be a union of entire interest of the lessor and kssee, there is a merger but a lease is not extinguished because the lessee bas purchased a part of the reversion. (Vide Sec. 111 - D of the Transfer of Property Act and Mulla's Transfer of Property Act (6th Edn. pp 742-743). The principle of merger is also laid down in S. 22 of the Bengal Tenancy Act. There is however no provision in the Land Reforms Act containing the principle of merger of interests of raiyat and bargadar. But none the less, the expression of 'another' in the definition of bargadar in S. 2(2) of the Land Reforms Act presupposes that the 'owner' and the 'bargada,' are two separate entities and, therefore, when a bargadar purchases the land of the owner or in any was the owner's interest in the land vests in the bargadar he would cease to be a bargadar despite the absence of any provision of merger as contained in S. 22 of the repealed Ben gal Tenancy Act. However, inasmuch as in the instant case only a share or the owner in the disputed land has devolved upon the bargadar in respect of the entire land there is no question of merger of interest of owners and that of bargadar in respect of the entire land in question So far as Kalipada's 1/10th share in the disputed land is concerned he cannot be said to be a bargadar but regarding his other co-owners that is not the case. In the other 1/10th share of the land Kalipada's right as 'bargadar' remained unaffected and he continued after Basanta's death as bargadar under the owners of the 1/10th share of the disputed land. It is true that possession of One co-owner is the possession of all co-owners but that is only in the Context of the fact of adverse possession between the co-owners. Possession under the common title of the co-owner will be held to be for the benefit of all and not to be presumed as adverse to the others. Simply because the possession of one co-owner is held to be for the benefit of other co-owners that does not prevent a co-owner to be a bargadar under his other co-owners. The respondent No.1 Kalipada was admittedly a bargadar under Basanta, the last sole owner of the land. Because after Basanta's death his heirs i e. the petitioners and the respondent no.1 became co-owners of the disputed land that does not mean that the right of the respondent no.1 as bargadar in. respect of the entirety of the disputed land ceased or was lost. In my view, the principle of merger as applicable in case of lessor and lessee is also applicable in the interest case. Therefore. upon Basanta's death Kalipada's right as bargadar in respect of 9/10th share of the disputed land which has devolved upon the petitioners continued and was not affected by the merger of interest of all co-owners with that of bargadar as contended by the petitioners. The merger of interest of bargadar with that of the owner in the instant 'case was only to the extent of 1/10th share of Kalipada in the disputed land but regarding 9/10th share of the said land two interest remained separate and distinct. The merger of interest of bargadar with that of the owner in the instant 'case was only to the extent of 1/10th share of Kalipada in the disputed land but regarding 9/10th share of the said land two interest remained separate and distinct. It is also to be noted that under S. 17 of the Land Reforms Act termination of cultivation by bargadar is allowed only on the grounds as mentioned therein. 10. In the aforesaid view of the matter the impugned orders of the Bhagchas Officer, Habra-II, Guma, 24-Parganas and the Executive Magistrate, Barasat, 24-Parganas were correctly passed and cannot be questioned on the ground as contended by the petitioners in this case. This application is, therefore, rejected. There shall however be no order as to costs. Application rejected.