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1983 DIGILAW 314 (CAL)

Bishnupada Khatua v. STATE OF WEST BENGAL

1983-12-09

AMITABHA DUTTA

body1983
JUDGMENT 1. THIS is an appeal by the plaintiffs from the decree passed by the Additional District judge 1st Court, Midnapore affirming the decision of the learned Munsif 2nd court, Midnapore, by which he has dismissed a suit for declaration of title and further declaration that the entries in the R. S. Record in respect of 4. 62 acres of land appertaining to R. S. Khatian no. 30 and 303 of Mouja Chakoi, P. S. Narayangarh in the district of Midnapore are erroneous and not binding on the plaintiffs and for a permanent injunction restraining the respondent from interfering with the plaintiffs' possession of the suit land as described in the schedule to the plaint. 2. THE plaintiffs' case was that they inherited the suit land on the death of their father who died long before the r. S. operation when the plaintiffs were minors and had none to look after their affairs regarding the landed property. It was alleged in the plaint that the mother of the plaintiffs submitted B form retaining the suit lands which have all along been in possession of the plaintiffs from before the coming into operation of the estates Acquisition Act, 1953. In august, 1966 the local Tahasildar of the government refused to accept rent from the plaintiffs and disclosed that the suit lands were treated as vested lands of the State. Thereafter the plaintiffs submitted two separate B Forms on 26.9.1966 retaining the suit lands but even subsequent to such filing of B Forms the local tahasildar threatened to take possession of the suit lands on behalf of the Government. So the plaintiffs instituted the suit on 21.11.1969 after service of a valid notice under section 80 of the Code of civil Procedure. The defendant State of West Bengal filed written statement denying that the plaintiffs retained the suit lands and asserting that the suit lands vested in the State of West Bengal as the plaintiffs having intermediary interest therein did not retain the same. It has also been pleaded that the plaintiffs were not allowed to retain the suit lands on the basis of the B Forms submitted on 26.9.1966 as the Collector had already taken possession of such lands. 3. THE learned Munsif dismissed the suit holding that as the plaintiffs did not retain the suit lands within time they were not entitled to the declarations and injunction prayed for. 3. THE learned Munsif dismissed the suit holding that as the plaintiffs did not retain the suit lands within time they were not entitled to the declarations and injunction prayed for. The first appellate court has affirmed the decision of the learned Munsif mainly on the ground that the question whether the plaintiffs are entitled to retain the suit lands or not, or whether the Revenue officer was justified or not in disallowing the retention of the suit lands on the basis of the B forms filed on 26.9.1966, cannot be gone into in a Civil Court in view of section 57b of the West Bengal estates Acquisition Act. In that view, he found that the plaintiffs are not entitled to the reliefs claimed in the suit. 4. THE learned Advocate for the appellant has challenged the decision of the first appellate court on several grounds. It is submitted on behalf of the appellants that in view of the undisputed facts mentioned in the judgment of the appellate court that the plaintiffs held lands within the ceiling limit, that the plaintiffs submitted B Forms, on 26.9.1966 retaining the suit lands and that inspite of their plea in the written statement that the Collector had already taken possession of the suit lands prior to the submission of B Forms on 26.9.1966, not a scrap of paper being filed on behalf of the defendant in support of such plea which has, therefore, been not established, the learned Judge has erred in not holding that the plaintiffs have the right to retain the suit lands in view of the provisions of section 6 (5) of the west Bengal Estates Acquisition Act and the decision of this Court in the case of Gour Gopal Vs. State of West bengal, 67 C. W. N. 12 which has been referred to and followed in subsequent decisions of this court in the case Lakshmi narayan Roy Vs. Land Reforms officer 1975 (2) C. L. J. 326 and T. P. Mukherjee vs. G. C. Mondal 70 C. W. N. 652 and Aswini Kumar Roy Vs. Smt. Surupa Roy 1981 (ii) C. H. N. 259. Land Reforms officer 1975 (2) C. L. J. 326 and T. P. Mukherjee vs. G. C. Mondal 70 C. W. N. 652 and Aswini Kumar Roy Vs. Smt. Surupa Roy 1981 (ii) C. H. N. 259. It is further submitted that the provisions of section 57b of the Act does not exclude the jurisdiction of the Civil Court in deciding a suit for declaration of title and permanent injunction like the instant suit although the plaintiffs have incidentally challenged the correctness of the entries in the R. S. Record. This view derives support from several decisions of this court viz., Ram Krishna Mallick Vs. State of West Bengal 1975 (1) C. L. J. 154 chaturbhuj Mishra Vs. State of West bengal 82 C. W. N. 589 and other decisions and the Division Bench decision in the case of Tarak Chandra Vs. Satya Narayan Singh 1975 (2) C. L. J. 246. He has also cited a recent unreported decision of a learned Judge of this court, Chittatosh Mookerjee J. In the case of Brojo gopal Dutta and another Vs. State of west Bengal and others in Civil Rule no. 6593 (w) of 1974 wherein the learned judge relying on the decision in Lakshmi Narayan's case mentioned above has held that the petitioners were entitled to file return for the second time for retaining the non agricultural land within the ceiling limit in terms of section 6 (5) of the Act. 6593 (w) of 1974 wherein the learned judge relying on the decision in Lakshmi Narayan's case mentioned above has held that the petitioners were entitled to file return for the second time for retaining the non agricultural land within the ceiling limit in terms of section 6 (5) of the Act. After considering the submissions made on behalf of the Appellants and the facts and circumstances of this case and in view of the undisputed position that the appellants who held the suit lands in intermediary interest have been in khas possession thereof from before the, date of vesting; that the Collector did not take possession of the suit lands under section 10 (2) of the Act prior to the submission of the B Forms on 26.9.1966 by the plaintiffs and the provisions of sub-section (5) of section 6 of the Act which have been interpreted in gour Gopal's case 67, C. W. N. 12 that the revenue officer on the prayer of the intermediaries so long as the intermediary has not parted with his possession of the lands in favour of the Government is to allow him to retain so much of the lands as do not exceed the statutory limit, it must be held that the plaintiffs have legally retained the suit lands although they filed the B Forms retaining such lands on 26.9.1966 after their mother had earlier filed B Form without retaining the same. In my view, the learned Judge of the Appellate Court has erred in holding that the suit for declaration of title and permanent injunction cannot be decided by the Civil court in view of the provisions of section 57b of the Act as the view of the learned Judge is contrary to the provisions of the said section as well as the trend of decisions of this Court which have been referred to by the learned. Advocate for the appellant. The mere fact that the plaintiffs have also prayed for declaration that the entries in the R. S. Record showing the suit lands as vested lands are erroneous and not binding on the plaintiffs such prayer by itself does not render the suit non justiciable by the by the Civil Court as the substantive claim of, the plaintiffs is declaration of their title to the suit lands and permanent injunction restraining the defendants from interfering with their possession thereof. 5. 5. IN such circumstances, this appeal must succeed and the decision of the court of appeal below must be set aside. The appeal is therefore allowed the judgement and decree of the court of appeal below are set aside. The suit is decreed. The plaintiffs title to the suit land is declared and the defendant is permanently restrained from interfering with the plaintiffs' possession of the suit land. There will be no order as to costs throughout. Appeal allowed.