Binapani Debi v. State of West Bengal — 1989 DIGILAW 374 (CAL)

JUDGMENT This appeal is directed against the judgment and decree passed by the learned District Judge, Hooghly in T.A. No. 290 of 1972 reversing those of the learned Munsif, 1st Court, Hooghly passed in T.S. No. 158 of 1968. 2. The plaintiff/appellant filed the suit for declaration and injunction. Her case was that the suit property originally belonged to one Daulatnessa Bibi in occupancy Raiyati interest. She was in possession of the suit property and on 30.5.58 she transferred the same to the plaintiff for a consideration of Rs. 999/-. The plaintiff got possession after purchase and her name was also recorded in the R.S. Record of Rights on the basis of her purchase. Government of West Bengal mutated her name and also realised rent for the suit land all along and recognied her as a tenant. On 17.3.68 the plaintiff came to know that the defendant, State of West Bengal started a Big Raiyat case against her vendor and ultimately the suit land was treated as vested in the State. The plaintiff was threatened with dispossession Hence the suit after service of notice under s. 80 CP Code. 3. The State of West Bengal contested the suit by filing a written statement in which it was pleaded inter alia that, Daulatnessa had land in excess of the ceiling and so excess land has been directed to be vested. As the order of vesting operated retrospectively, plaintiff's vendor had no title to the suit property on 30.5.58 and the plaintiff could not, therefore, acquired any right title or interest to the suit-property. 4. The learned Munsif held that the Government accepted the plaintiff as a tenant. mutated her name and realised rent from her and so the transfer of the suit land in favour of the plaintiff was within the full knowledge of the Government and in such circumstances, the plaintiff ought to have been made a party in the Big Raiyat case. Where the Revenue Officer could have considered the question of equities and the lands transferred to the plaintiff ought to have been deducted from the ceiling of land Daulatnessa was entitled to retain so that the plaintiff's vendor could not practise fraud upon the plaintiff and the State. He has further held that the decision in the Big Raiyat case is, therefore, not valid and binding upon the plaintiff. He has further held that the decision in the Big Raiyat case is, therefore, not valid and binding upon the plaintiff. He accordingly passed a decree in favour of the plaintiff. 5. The State of West Bengal preferred an appeal against the said decision being T.A. No. 290 of 1972. The learned District Judge who heard the appeal allowed the same and set aside the judgment and decree passed by the learned Munsif. According to the learned District Judge, it is no business of the State to force a big Raiyat to retain a particular land against her choice and it was upto Daulatnessa Bibi to retain which land she preferred and if the State did not take any active part in safeguarding the interest of the plaintiff, the State could not be at fault. He has further held that it was not incumbent upon the State to make the plaintiff a party in the Big Raiyat case and that the State was not stopped from saying that the plaintiff was not a tenant. Being aggrieved by the said decision the plaintiff has preferred this second appeal. 6. Mr. Chakraborty, learned Advocate for the appellant has contended that plaintiff's name was recorded in the R.S. Record of Rights on the basis of her purchase and her name was mutated and the State Government all along received rent from her and in such circumstances where the State Government had clear knowledge of the transfer, the plaintiff ought to have been given a notice in the Big Raiyat case and that the order of vesting is not valid and operative against the plaintiff. The second branch of his argument is that when the plaintiff's name was mutated and the rents were accepted by the Revenue Authorities, the tenancy of the plaintiff cannot be disputed by the State. Even assuming that the right of the plaintiff's vendor had vested in the State of West Bengal, because of the subsequent acts it must he held that the State Government recognised the tenancy right of the plaintiff In support of his contentions he has referred to three decisions in Mr. Nawsher Ali and Ors. v. State of West Bengal, 1988(1) CHN 363, Probhas Chandra Mondal and Anr. v. State of West Bengal & Ors. 1977 (2) CLJ 246 and Panchu Mollah v. State of West Bengal & Ors. 1980 (2) CLJ 1. 7. Nawsher Ali and Ors. v. State of West Bengal, 1988(1) CHN 363, Probhas Chandra Mondal and Anr. v. State of West Bengal & Ors. 1977 (2) CLJ 246 and Panchu Mollah v. State of West Bengal & Ors. 1980 (2) CLJ 1. 7. In the case of Nawsher Ali & Ors. (supra) which was decided by me, the question for determination was whether an intermediary was entitled to revise or alter his choice in respect of land which he previously retained and transferred to a third party in a subsequent return submitted after insertion of Rule 4A. The question was answered in the negative. The facts of that case are different Mr. Chakraborty, however, relies upon the following observation : “..................the intention of the Legislature is clear that the ceiling of land that can be retained by an intermediary includes the land transferred by him. The total land retainable by an intermediary must include the land transferred by him even after the date of vesting. The land so transferred should be deemed to have been retained by him. Otherwise, an intermediary would be given an opportunity to practise fraud on the transferee and also on the State. After already receiving consideration from the transferee he would then be entitled to receive compensation from the Government. He would be allowed to defeat the object of the Act by retaining in effect more lands in excess of the prescribed ceiling". The question is after an intermediary has transferred land since the date of vesting to a third party, would the latter be exposed to the risk of a malafide choice by the intermediary excluding the portion sold to the transferee. Is the problem to be regarded essentially and for all purposes as one of equities between the intermediary on the one hand and the transferee on the other, so that it is for the transferee to take steps against the intermediary in appropriate cases ? or, when under some circumstances the Revenue Officer comes to know of the transfer should he entertain the question of equities when he determines the option of the intermediary. In the Case of Probhas Chandra Mondal (supra), Sudhamoy Basu, J, has opined in favour of the latter process which would have two merits to commend it, (1) equitable consideration and (2) expedition. In the Case of Probhas Chandra Mondal (supra), Sudhamoy Basu, J, has opined in favour of the latter process which would have two merits to commend it, (1) equitable consideration and (2) expedition. Relying on the Supreme Court decision in Gurcharan's case AIR 1974 SC 223 , Sudhamoy Basu, J. has held that known transferees are entitled to notice. In his opinion, one way of harmonising the decision of the court upto date on the question in hand is to hold that ordinarily either for the purposes of s. 44(2A) or s. 6 of the Estates Acquisition Act, 1953, transferees after vesting are entitled to no notice at all but when the names of such transferees are known to the authorities concerned on account of reasons such as, mutation of their names and rent being accepted by the State Government, they should be given notice even though primarily equities between the transferors and transferees are to be confined inter se. In the instant case, the appellant's name was recorded in the R.S. Record of Rights on the basis of her purchase and her name was mutated and rents were accepted by the State Government. The Revenue Officers had, therefore, clear knowledge of the transfer. Relying on the decision referred to above, I, therefore, hold that the appellant was entitled to notice in the Big Raiyat proceeding and in the absence of such notice the order of vesting of the disputed property behind her back is not valid and operative. The appellant, therefore, acquired right, title and interest to the disputed property by her purchase. Even assuming that the right of the appellant's vendor vested in the State. In the facts of the case it must be held that the appellant acquired an independent status of tenant apart from her rights as transferee. In the case of Probhas Chandra Mondal, referred to above it was held that a consideration of the facts of the case that the petitioners were recognised as tenants after mutation of their names and after acceptance of rents by the State Government, they must be deemed to have acquired their status as raiyat apart from the rights a, transferees. In the case of Probhas Chandra Mondal, referred to above it was held that a consideration of the facts of the case that the petitioners were recognised as tenants after mutation of their names and after acceptance of rents by the State Government, they must be deemed to have acquired their status as raiyat apart from the rights a, transferees. The same view was taken in the case of Panchu Mollah (supra) by Ganendra Narayan Roy, J. It was held that when the State Government has mutated the name of the petitioner as a tenant and has accepted rents from him as a tenant, the State Government cannot treat the said land as a vested land and settle the same to other persons. Even assuming that the right of the vendor of the petitioner had vested in the State of West Bengal but by the said subsequent acts, it must be held that the State Government recognised the tenancy right of the petitioner. As already stated, in this case also the State Government mutated the name of the appellant and accepted rents from her. The State Government cannot, therefore, dispute the tenancy right of the appellant and interfere with her possession. 8. For the aforesaid reasons, the appeal is allowed and the judgment and decree of the lower appellate court are set aside and those of the trial court are restored and confirmed. Appeal allowed.