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1986 DIGILAW 265 (CAL)

Ananda Bag v. Yasmin Mirja

1986-06-27

S.Bhattacharyya

body1986
JUDGMENT SANKAR BHATTACHARJEE, J. 1. THIS revisional application seeks to challenge an order of the learned Additional District Judge, 1st Court, Hooghly, affirming an order of temporary injunction passed by the learned Munsif, 1st Court, Arambagh. The application arises thus. 2. OPPOSITE party No. 1 herein brought Title Suit No. 145 of 1981 against the petitioners and certain others in the 1st Court of the Munsif at Arambagh for declaration of his title, confirmation of possession and permanent injunction. His case was that he is the owner in khas possession of the suit lands but the petitioners, claiming to be bargadars in respect of the said lands under him. were trying to disturb his peaceful possession of the same. The defence was that the petitioners, who figure as defendant Nos. 3 and 4 in the suit, have been cultivating the suit lands under the opposite party No. 1 as bargadars for a period of about 8-10 years preceding the institution of the suit. The learned Munsif, upon the finding that the opposite party No. 1 is prima facie in possession of the suit lands, allowed his application for temporary injunction. Aggrieved thereby, the petitioners took an appeal which proved abortive. Thereafter they moved this court in revision and obtained this Rule. 3. MR. Chatterjee appearing in support of the Rule has raised a preliminary point with regard to the maintainability of the application for temporary injunction. According to MR. Chatterjee, since in the suit the question was raised as to whether the petitioners are or not bargadars with respect to the suit lands, the learned Munsif had no option but to refer it under Sub-section (3) of section 21 of the West Bengal Land Reforms, Act, 1955 ('Old Act' for short), as amended by the West Bengal Land Reforms (Amendment) Act, 1981, to the officer or authority mentioned in Sub-section (1) of Section 18 for decision. 4. EVEN before the amendment of the old Act by the West Bengal Land Reforms (Amendment) Act, 1981, Sub-section (3) of Section 21 of the old Act, contained a similar provision for such reference by the civil or criminal court, where in the course of any proceedings before it, the question arose as to whether a person was or was not a bargadar with respect to the land involved in the proceedings. In quite a number of proceedings under the old Act the jurisdiction of the Civil Court to entertain and dispose of an application for temporary injunction before making the reference under Subsection (3) was challenged and the controversy was set at rest by a Single Bench of this court in the case of Kalidas Mukherjee vs. Jair Singh, reported in 1978(1) C.L.J 390, later on approved by a Division Bench in the case of Haradhan Chongdar vs. Jitendranath Hambir, reported in 1980(1) C.L.J. 75 . In both the cases tinder reference, it was held that Sub-section (3) of Section 21 cannot operate as a bar to the disposal of an application for temporary injunction by the Civil Court before making reference. 5. MR. Chatterjee's contention is that in view of the charges brought about in Sub-section (3) of Section 21 of the old Act by the Amending Act of 1981 the above decision no longer holds the field and under the amended Sub-section (3) of Section 21 whenever the question is raised in any suit, case, appeal or other proceedings before a Civil Court as to whether a person is or is not a bargadar the Civil Court must make a reference under the said Sub-section even before disposing of an application for temporary injunction. 6. FOR proper appreciation of the point raised by Mr. Chatterjee the provisions of Sub-section (3) of Section 21 before as well as after the amendment of the said Sub-section are extracted below. "(3) if any question as to whether any person is or is not a bargadar arises in the course of any proceedings before any civil or criminal Court the court shall refer it to the officer or the authority mentioned in Sub-section (1) of Section 18 for decision." After the amendment the amended Sub-section (3) reads as follows : "(3) If any question as to whether a person is or is not a bargadar arises in the course of any suit, case, appeal or other proceeding before any civil or criminal Court, the court shall refer it to the officer or authority mentioned in Subsection (1) of Section 18 for decision and such court shall dispose of the suit, case, appeal or other proceedings in accordance with the decision communicated to it by the officer or authority mentioned in Sub-section (1) of Section 18 to whom the question was referred." 7. IT would thus appear that in the amended Sub-section the words "suit, case, appeal or other have been prefixed to the word "proceedings" and the sentence "for decision and such court shall dispose of the suit, case, appeal or other proceedings in accordance with the decision communicated to it by the officer or authority mentioned in sub-section (1) of Section 18 to whom the question was referred" has been added at the end of the concluding sentence "the court shall refer it to the officer or the authority mentioned in Sub-section (1) of Section 18 for decision" appearing in Sub-section (3) of the old Act. 8. THE question is whether the changes thus brought about in Sub-section (3) of Section 21 of the old Act by the Amending Act 1981 have the effect of overriding the decisions cited above. In my considered opinion, they have no such effect. The Single Bench decision reported in 1978(1) C.L.J. 390 appears to have proceeded on the footing that the court, in hearing an application for temporary injunction and the appeal arising therefrom, is to consider only the prima facie cases of the parties, balance of convenience and inconvenience, question of irreparable injury etc. Since at that stage, the court does not make any adjudication as to the rights of the parties the disposal of the temporary injunction matter would not prejudice the proceedings, if any, under Section 21(3) of the Act. In fact, Section 21(3), read with Section 18(2) does not provide for passing of interlocutory orders. Therefore, the civil court is free to hear the application for interim orders notwithstanding that a reference under Section 21(3) may be contemplated. 9. IN the Division Bench decision reported in 1980 C.L.J. 75 Their Lordships observed that the bar of jurisdiction imposed by Section 21.(3) of the West Bengal Land Reforms Act is not an absolute bar. It only bars the jurisdiction of the court to decde the question whether a person is or is not a bargadar if such question is raised in the suit. IN all other respects the court retains jurisdiction over the suit. Section 21 and Section 18 of the act, read together, do not indicate either expressly or by implication that the court would have no jurisdiction to pass an order for temporary injunction if a case in that behalf is made out. IN all other respects the court retains jurisdiction over the suit. Section 21 and Section 18 of the act, read together, do not indicate either expressly or by implication that the court would have no jurisdiction to pass an order for temporary injunction if a case in that behalf is made out. The jurisdiction of the civil court is not outsted merely because a disputed question as to the status of the defendant who claims to be a bargadar is referred to the competent authority for decision. Even where such a reference is made the court remains in seisin of the suit and has to dispose of the same after the decision by the authority is received. 10. MR. Chatterjee vehemently argues that the addition of the concluding sentence "for decision and such court shall dispose of the suit, case, appeal or other proceedings in accordance with the decision communicated to it by the officer or authority mentioned in Sub-section (1) of Section 18 to whom the question was referred" in the amended Sub-section (3) clearly and unmistakably goes to indicate that even for the disposal of "other proceedings" which includes proceedings for temporary injunction the civil court has to proceed in accordance with the decision of the officer or authority mentioned in Sub-section (1) of Section 18. That being the position, argues MR. Chatterjee, the civil court has now no jurisdiction under the amended Sub-section (3) even to dispose of an application for temporary injunction without making the reference and before receiving the decision of such officer or authority. It is not possible to accept the argument advanced by Mr. Chatterjee. An application for temporary injunction may give rise to a "proceedings" in the wider sense of the terms but then, it is a proceedings in the suit itself, whereas the "other proceedings" referred to in the amended Sub-section (3) of Section 21 clearly envisages an independent proceedings. There can be no manner of doubt that in deciding the suit the civil court must proceed in accordance with the decision of the officer or authority to whom the reference has been made but this does not hold good in the case of an application for temporary injunction where there is no adjudication as to the rights of the parties. In other words, though the decision of the officer or authority to whom the reference has been made is to be regarded as a finding in the suit itself it will, in no way affect the disposal of the application for temporary injunction. I, therefore, hold that the changes brought about in Sub-section (3) of Section 21 of the old Act by the Amending Act of 1981 have not altered the position as laid down in the two decisions under reference. The preliminary point urged by Mr. Chatterjee, therefore, appears to be without substance and cannot be upheld. 11. WITH regard to the merits, as stated already both the courts below came to the concurrent finding that opposite party No. 1 is prima facie in khas possession of the suit lands. The findings rest on the following grounds : (i) In the finally published R. S. record of rights, the suit lands have been recorded as the khas lands of opposite party No. 1; (ii) even in the modified settlement record of rights, though not finally published, the suit lands have been recorded to be the lands of opposite party No. 1; (iii) in a previous suit, being Title Suit No. 241 of 1976, by opposite party No. 1 against the State of West Bengal, his title to the suit lands was declared and his possession of the same confirmed; (iv) not a single scrap of paper could be produced by the petitioners in support of their claim that they are bargadars with respect to the suit lands; 12. MR. Chatterjee contended that since the R.S. record of rights was finally published in the year 1957 and the petitioners' case is that they are in possession of the suit lands for 8-10 years preceding the institution of the suit that is, since 1971/73, the courts below should not have placed any reliance on the said record of rights in arriving at the finding that opposite party No. 1 is not in possession of the suit lands. A record of rights has a forward presumption and in the absence of any material whatsoever even to prima facie rebut that presumption the courts below, in any opinion, acted rightly by relying upon the R.S. record of rights. 13. MR. A record of rights has a forward presumption and in the absence of any material whatsoever even to prima facie rebut that presumption the courts below, in any opinion, acted rightly by relying upon the R.S. record of rights. 13. MR. Chatterjee asails the judgment of the lower appellate court on the ground that it should not have placed any reliance upon the decision in Title Suit No. 241 of 1976 which was not a suit inter-parts. It appears that the said suit was brought by opposite party No. 1 against the State of West Bengal for declaration of his title to the suit lands, confirmation of his possession with respect to the said lands and for perpetual injunction restraining the State from interfering with his possession of the same. The suit was decreed after contest and the opposite party No. 1 obtained the reliefs claimed in the suit. Since the petitioners were not parties to the said suit the decision therein cannot be binding upon them. But then, the judgment passed in the said suit is evidence under Section 13(b) of the Indian Evidence Act as an instance where title and possession with respect to the suit lands were asserted by opposite party No. 1 and upheld by a competent court. Therefore, the lower appellate court did not commit any error in relying upon the said decision as one of the circumstances lending support to the case of opposite party No. 1. 14. THE concurrent findings of the courts below that the petitioners failed to establish their prima facie possession of the suit lands as bargadars cannot be interfered with in revision. In the result, I see no reason to interfere with the impugned order. Accordingly the Rule is discharged. In the circumstances of the case, there will be no order as to costs. let the lower court record be sent down immediately. Rule discharged.