Ananta Kumar Saha v. Ajoy Kumar Biswas — 1981 DIGILAW 6 (CAL)

JUDGMENT The plaintiff has alleged that the disputed plot No. 202 having an area of 65 cents appertains to the khatian No. 1825 and the plot No. 202/2343 appertains to the Record of Rights No. 1142 of Mouza Jagadanandapur in the district of Nadia. The subject matter of the suit was held by one Sonai Sk. in utbandi system under the zamindar Pal Choudhury of Bethuadahari. He died leaving his two sons, Chatui and Chhoban, who inherited the property. On the 4th August, 1943, Chhoban Sk. sold his 8 annas share in the property by registered kobala to the plaintiff's father, Satkari, pro-defendant No. 4. Then by a registered sale deed dated the 25th August, 1943, Chatui sold his 8 annas share in the property to Gopal Chandra, pro-defendant No. 5. Thereafter, Sarkari, and Gopal possessed that property. By a registered sale deed dated the 20th August, 1956, Satkari sold his 8 annas share in the property to Gopal Chandra and thus the latter acquitted 16 annas title thereto. Satkari executed a deed of release for that property in favour of proforma defendant No. 5. Then Gopal Chandra transferred 91 decimals of land appertaining to the plot No. 202 to the plaintiff by a registered sale deed dated 20th August, 1956. After the purchase, he began to possess the land 22 cents of land of that plot was included in the National High Way. Then the defendant No. 1 (Dam) and defendant No. 2 (Jamat) filed an application under S. 44(1) of the West Bengal Estates Acquisition Act against him alleging that 25 years ago their father had been staying on 15 decimals of land appertaining to the plot No. 202 by constructing huts thereon. In that way, they managed to get their names recorded as under-raiyats regarding that plot under the plaintiff in the R.S. Khatian No. 1825/1. But the plaintiff never gave any settlement to them. Then the defendant No. 3 filed an objection under S 44(2a) of the Act against him and alleged that he purchased 65 decimals of land from defendant Nos. 1 and 2 by a registered kobala dated 9.8.1958. But the plaintiff never gave any settlement to them. Then the defendant No. 3 filed an objection under S 44(2a) of the Act against him and alleged that he purchased 65 decimals of land from defendant Nos. 1 and 2 by a registered kobala dated 9.8.1958. That objection was illegally allowed by the A.S.O. The plaintiff preferred an appeal but lost the same and thus 16 decimals of land appertaining to plot No. 202 was illegally recorded in favour of the defendant No. 3 in the R.S. khatian No. 3 in the R.S. khatian No. 1142. The suit is for declaration of title and recovery of actual possession. 2. Defendants Nos. 1 and 2 filed a written statement. Their defence is that previously they lived on plot No. 187. But they had to face difficulties. So they obtained permission of Satkari and of Gopal Chandra and erected thatched huts on the disputed land. Subsequently they sold the property to defendant No. 3. 3. Defendant No. 3 put in a written statement denying the plaintiff's allegations. He has alleged that Sonai and his two sons had no title or possession. The alleged sales by Chhoban and Chatui are fraudulent and collusive transactions. Dasu and Jamat used to live on the plot No. 202 for more than 30 yeas by raising huts thereon. Satkari Biswas was an employee of the landlord. Dasu and Jamal paid rent to him, but he did not grant any dakhila to them. They were tenants and they made a valid sale to him on the 9th August, 1958. The entries in the Records of Rights are correct Dasu and Jamat possessed that land adversely for more than 30 years and acquired title thereto by adverse possession. The other property, which measures 16 decimals of land appertaining to plot No. 202/2343, belonged to Sashi Mal. He possessed the land for more than 12 years by paying rent. Defendant No. 3 purchased that property from Sashi's heirs by a registered kobala dated 6-7-1953 and since then he is possession thereof adversely for more than 12 years. 4. The learned Munsif accepted the plaintiff's(?) version and dismissed the suit. The plaintiff preferred an appeal, which was allowed by the learned Additional Sub-Judge, Nadia. Hence this appeal by the defendant No. 3. 5. It has been contended on behalf of the appellant that the C.S. Khatian, Ext. 4. The learned Munsif accepted the plaintiff's(?) version and dismissed the suit. The plaintiff preferred an appeal, which was allowed by the learned Additional Sub-Judge, Nadia. Hence this appeal by the defendant No. 3. 5. It has been contended on behalf of the appellant that the C.S. Khatian, Ext. 6/g, shows that Sonai occupied the disputed properties in utbandi system. He had no right of a raiyat or of an occupancy raiyat therein. No case has been made not in the plaint that he ever acquired title of an occupancy raiyat in that plot. Hence after his death his sons did not acquire any interest therein by inheritance and the plaintiff did not acquire any title to the land in question by his purchase from Gopal Chandra, proforma defendant No. 5. No case of custom envisaged by S. 180(i)(a) of the Bengal Tenancy Act was pleaded in the plaint. The appellate court did not consider the entries in the C.S. Khatian and in the R.S. Khatian Satkari admitted before the A.S.O. that Dasu and Jamat used to possess the disputed land for more than 12 years. This admission was not properly considered by the learned Additional Subordinate Judge. It is immaterial whether the defendant proved his case because the suit is for title and hence the plaintiff must win only by proving his own title. 6. The learned Advocate appearing on behalf of the plaintiff respondent has contended that in view of the provisions of S 180 of the Bengal Tenancy Act, Sonai held the disputed property under utbandi system and he was a raiyat. Reference has been made to the provisions of Ss. 18, 20, 21, 23 and 5(2) of the Act. It has been contended that once the court sees that Sonai was a utbandi raiyat regarding the disputed land, he will get advantage of the provisions of Ss. 20, 21 and 23 of the Act. Sub-section (2) of S. 20 clearly says that for the purpose of this section a person shall be deemed to have continuously held land in a village notwithstanding that the particular land held by him has been different at differed times. Even if a utbandi tenant transfers a land, the transfer is not void ab initio. There is no bar in law to a right of transfer of a property held by a utbandi raiyat. Even if a utbandi tenant transfers a land, the transfer is not void ab initio. There is no bar in law to a right of transfer of a property held by a utbandi raiyat. Such transfer is valid against the whole world except against the landlord, who may question the same. But if the landlord accepts rent from the transferee, he waives his objection and the transfer also becomes binding on the landlord as well. Reference has been made to the Full Bench case of Chandra Benode Kundu v. Sheikh Ala Bux Dewan in 24 CWN 818 at pages 853 and 854 to show that a transfer for value of an occupancy holding in whole or in part is not effective against his landlord without his consent. The Full Bench decision of Dayamoyi v. Ananda Mohan in 18 CWN 971 was modified, in Chandra Benode's case to that extent. The final court of fact has stated that rent paid by the transferee was accepted by the landlord. This finding of fact is binding on the High Court in second appeal. The case of Rama Chandra Ayyar & anr. v. Ramalingam Chettiar & anr. in AIR 1963 SC 302 has been cited to support this contention. The alleged admission said to have been made by the plaintiff's father before the A.S.O. has no value in the eye of law. Reference has been made to the case of Sitaram v. Ram Chandra in AIR 1917 SC 1712 at page 1717 to show that an admission is relevant, but it is not conclusive proof. It has to be seen whether the admission is clear and unambiguous. Even if an admission is proved, it is to be used against the party who has made it. It has to be put to that person who made it when is under cross-examination on oath. Mere proof of admission, after that person has concluded his evidence, cannot be utilised against him. The clear case in the written statement of the defendant Nos. 1 and 2 is that their occupation of the disputed land by constructing huts thereon was as licensees and not as tenants. There is no reason to disturb the decision of the appellate court because when Sonai was a raiyat, his heirs, that is, his sons, Chhoban and Chatui, will also be included within the category of raiyats. 7. 1 and 2 is that their occupation of the disputed land by constructing huts thereon was as licensees and not as tenants. There is no reason to disturb the decision of the appellate court because when Sonai was a raiyat, his heirs, that is, his sons, Chhoban and Chatui, will also be included within the category of raiyats. 7. Let us first discuss whether the plaintiff would be entitled to the disputed land by reason of the purchase from Gopal Chandra. Law is that the plaintiff is to succeed on the strength of his own case and not the weakness of the defence version. This principle has been laid down by the Judicial Committee in the case in AIR 1946 P.C. 59 at page 61 and AIR 1954 SC 526 at page 538. No case has been made out in the plaint that Sonai was a raiyat or occupancy raiyat regarding the property in question for 12 years or he acquired the interest of raiyat or of occupancy raiyat by custom. After following the case of Venkatramana in AIR 1958 SC 255 , a Bench of our Court in the case of West Bengal Provincial Co-operative Bank v. S.N. Ghosh in 84 CWN 221 has stated that if a case is not made out in the plaint, evidence to support such case cannot be allowed by the court. The only case made out in the plaint is that Sonai occupied the land in a utbandi system and after his death his two sons inherited the property. But a new case of a settlement was made out at the trial and this ought not to have been admitted in evidence. As there is no case in the pleading that Sonai possessed the property as an occupancy raiyat continuously for 12 years, he cannot be a raiyat as envisaged by S. 180 of the Act. 8. In view of the clear provisions of S. 180 of the Bengal Tenancy Act, a person who merely holds in a utbandi system cannot become an occupancy raiyat by virtue of the provisions of S. 20 about settled raiyat and of S. 21 of the B.T. Act dealing with settled raiyats to have right of occupancy. A reference to raiyat in S. 180 of the Act is therefore of no consequence. It will appear from the C.S. Khatian, Ext. A reference to raiyat in S. 180 of the Act is therefore of no consequence. It will appear from the C.S. Khatian, Ext. 6(g), that the disputed plot was settled in utbandi system and the property was settled from year to year. The further entry therein is that the disputed plots were held by Sonai without any right of occupancy. The learned Subordinate Judge completely overlooked the entries in the C.S. khatian. In the case of Sankar Rao v. Sambhu reported in 45 CWN 57 (PC) it has been stated by the Judicial Committee that where in coming to a finding of the fact the first appellate court gave no effect to the statutory presumption under S. 135J of Bombay Land Revenue Code (corresponding to the presumption under S. 103B of the Bengal Tenancy Act), such finding is not binding on the High Court in second appeal. Strangely enough, the appellate court has observed that Chhobhan and Chatui could not inherit an occupancy interest of their father Sonai; but since their kobalas, Exts. 1 and 1(c). showed that they conveyed occupancy raiyati interest in 1943, the plaintiff's title cannot be declared. This erroneous judgment cannot be sustained. Since there is no indication in the plaint how an occupancy raiyat's interest was acquired and because the appellate court gave no reasons for making that observation, that decision is vitiated for non-consideration of material evidence. So it must be held that Sonai had no interest of a raiyat or of occupancy raiyat in the disputed land and Chhoban and Chatui did not acquire any interest whatever in such utbandi land after Sonai's death. Since they did not acquire any interest by inheritance, the conclusion follows that they could not transmit any title to the plaintiff's father (proforma defendant No. 4) and to Gopal Chandra (defendant No. 5) by making sales on 4.8.1943 and 25.8.1943 by kobala,s, Exts. 1 and 1(C). Therefore, on the basis of the purchases, the plaintiff did not acquire any title to the disputed land, and I find accordingly. 9. Of course, before the A.S.O. Satkari stated that Dasu and Jamat used to possess the disputed land for more than 12 years this admission is of no consequence because he is not the plaintiff. 1 and 1(C). Therefore, on the basis of the purchases, the plaintiff did not acquire any title to the disputed land, and I find accordingly. 9. Of course, before the A.S.O. Satkari stated that Dasu and Jamat used to possess the disputed land for more than 12 years this admission is of no consequence because he is not the plaintiff. It is sufficient to show that there is no scope for the application of the principles laid down in the case of Sitaram v. Ram Chandra (supra) because the A.S.O. did not record Satkari’s evidence. The latter made an oral admission before the A.S.O and he simply recorded the same. 10. Nevertheless the admission made by the defendant Nos. 1 and 2 in their written statement, that on the footing of licence granted by Satkari they erected but on the disputed land and resided thereon. But due to such defect it cannot be held that Sonai's sons were raiyats or occupancy raiyats and thus the plaintiff acquired title by his purchase. It has already been observed that the plaintiff can succeed on the strength of his own case and not on the weakness of the defence version. It has already been held that by the purchase the plaintiff did not acquire any title to the land in suit. There is also no reliable and cogent evidence on behalf of the plaintiff to show that Chhoban and Chatui continuously possessed the disputed land for 12 years. Since it has been found that Sonai was not an occupancy raiyat regarding the disputed land, the transfers made by sons cannot confer any title. Hence the Full Bench case of Chandra Benode Kundu (supra) is of no avail to the respondent. 11. The learned Additional Subordinate Judge did not discuss the case of defendant No. 3, who stated that the plot No. 202/2343 was purchased by him for the heirs of Sashi Mal by a registered sale deed dated 6.7.53. That land was recorded in his name in his R.S. khatian. This also was not considered by the first appellate court. The upshot of the aforesaid discussion is that the plaintiff failed to establish his case and hence the suit must fail. 12. The appeal is allowed. The judgment and decree appealed against be hereby set aside and the suit dismissed. The parties will bear their own costs throughout. Appeal allowed. Suit dismissed.