Sambhu Tundu v. State of West Bengal — 1990 DIGILAW 364 (CAL)

Judgement This appeal arises out of the decision of the learned Subordinate Judge. 3rd Court at Midnapur dated 5.11.76 in T. A. No. 357 of 1973 reversing the judgment and decree passed by the learned Munsif. 3rd Court, Midnapur in T. S No. 99 of 1971. 2. The plaintiff appellant instituted the said title suit for declaration of title and permanent injunction on the allegations that he purchased by a registered Kobala dated 5.664 the disputed property from defendant no. 5 and since then was in possession of the same. He paid Tem till 1375 B.S. and received dakhilas. Before his purchase, the plaintiff's vendor was in khas possession of the suit land which was retained by him by submitting Return in the 'B' Form on 22.4.69. The Tahsildar of the State Government threatened the plaintiff with dispossession firm the that land alleging that it had vested in the State. it was alleged that the entries in the record of rights were erroneous and the disputed land could not vest in the State of West Bengal. 3. The State of West Bengal contented the suit by filing a written statement. The defence case was that the suit land had vested in the State and the plaintiff by his purchase had not derived any title in the same and the state of West Bengal had taken possession thereof. 4. Upon a consideration of the evidence on record the learned Munsif has held that the plaintiff's vendor retained the suit land by filing Return in Form 'B' within the prescribed period and the plaintiff acquired good title to the land by his purchase by a registered Kobola dated 5.6.64 (Ext. 1). He has further held that the plaintiff was all along in possession of the suit land since the date of his purchase and the alleged surrender of the suit land by the plaintiff's vendor Nalini on 28.3.67 long after purchase of the suit property by the plaintiff could not affect the right, title and interest of the plaintiff. He accordingly passed a decree in favour of the plaintiff declaring his right, title, interest and possession in the suit land and permanently restraining the defendant nos. 1 and 2 from interfering with the plaintiff's peaceful possession in the suit land. 5. He accordingly passed a decree in favour of the plaintiff declaring his right, title, interest and possession in the suit land and permanently restraining the defendant nos. 1 and 2 from interfering with the plaintiff's peaceful possession in the suit land. 5. The appeal preferred by the State of West Bengal being T. A. No. 357 of 1973 was allowed and the judgment and decree passed by the trial Court were set aside by the learned Subordinate Judge, 3rd Court, Midnapur on the ground that the suit abated under the provisions of s. 57B of the West Bengal Estates Acquisition Act, though the learned Subordinate Judge affirmed the findings of the learned Munsif with regard to plaintiff's title and possession in respect of the suit property. Being aggrieved by the said decision, the plaintiff has preferred this second appeal. 6. Mr. Majumdar, learned Advocate for the appellant has contended that the suit being one for declaration of title and injunction does not come within the mischief of s. 57B of the West Bengal Estates Acquisition Act and there is no question of abatement of the suit as held by the lower appellate court. 7. Section 57B inserted by the West Bengal Estates Acquisition (2nd Amendment) Act, 1973 puts an embargo on civil courts entertaining and adjudicating any matter coming under sub-s.1 as well as under Clauses (a) to (c) of sub-so 2.' It also provides that if any suit involving such question is pending before a civil court at the commencement of the amending Act referred to above, such suit shall abate only with regard to the .matters aforesaid. Section 57B merely ousts the jurisdiction of Civil Court to entertain certain classes of suits but it does not debar the Civil Court from entertaining suits relating to matters not specified in sub-s. 1 as well as in Clauses (a). (b) and (c) of sub-s.2 of S. 57B It merely creates an embargo upon Civil Courts to entertain suits for determination of rent or determination of the status of the tenant or the incidents of tenancy (s. 57b (1). (b) and (c) of sub-s.2 of S. 57B It merely creates an embargo upon Civil Courts to entertain suits for determination of rent or determination of the status of the tenant or the incidents of tenancy (s. 57b (1). It also debars the Civil Court from entertaining any suit for alteration of any entry in the finally published revisional records-of-rights or for decision of any dispute involving determination of the question of retention of land by a raiyat or intermediary s. (57B(2)), when an order for preparation of revisional records-or-rights has been made under s, 39(1) of West Bengal Estates Acquisition Act, 1953 With regard to the object of the Statute and of the Rules framed thereunder with regard to the scope of the determination or adjudicating in the process of preparation or revision of record of rights, it has been consistently held that the questions of title were never left to be decided by the Revenue Officer or the Assistant Settlement Officer in the proceedings for preparation of the recorded rights. It is well settled that an entry in the record-of rights does not confer any title to the person in whose favour it is made nor does an erroneous entry therein take away title of the real owner. When an entry so made on a limited jurisdiction based on possession only creates no right nor takes away any, it is difficult to understand why one's title to institute a suit for vindication of title in a Civil Court should be barred A suit for declaration of title and permanent injunction is not, therefore, hit by s. 57B (Ram Krishna Mullick v. State of West Bengal (1975) 1 Cal.LJ 154; Ayubali Sardar v. Derajuddin (1975 2 Cal L.J 305: Sudhabodh Mishra v. State of West Bengal. (1976) Cal. LJ. 336; Chaturbhuj Mishra v. State of West Bengal 82 CWN 589). In the case of Ram Krishna Mullick & ors. (supra), it has been held that if questions of title are raised the suit will certainly lie and the suit cannot abate. (1976) Cal. LJ. 336; Chaturbhuj Mishra v. State of West Bengal 82 CWN 589). In the case of Ram Krishna Mullick & ors. (supra), it has been held that if questions of title are raised the suit will certainly lie and the suit cannot abate. In Jharna Ghosal v. Satyendra Prosad Dhar, 82 CWN 335, a Division Bench of this Court has held that where in a suit the principal issue relates to the question of title a prayer for a declaration that the entries in the record of rights are wrong or statements in the plaint assailing the correctness of such entries, would not bring the suit within the preview of s. 57B of the Act. 8. In most of the suits involving determination of questions of title to lands the entries in the record-of-rights are challenged by one party and relied on by the other. The plaintiff may come with a case for establishment of his title and in that connection it may be necessary for him to prove that the entries in the record of rights are erroneous. If in such suits it is held that s. 57B would apply leading to the recording of the orders of abatement of the suits, there would be no forum or process of law to establish title to land or property. Such cannot be the intention of the legislature In the case of Chaturbhuj Mishra (supra) it was held by another Division Bench of this Court that the suit being one for declaration of title and permanent injunction not involving the determination of any of the matters specified in sub-s. 1 as well as clauses (a), (b) and (c) of sub-s. 2 of s. 57B of the West Estates Acquisition Act did not abate under the provisions of s. 57B of the Act. . To Satish Chandra Maity v. Sailabala Dasi. . To Satish Chandra Maity v. Sailabala Dasi. 82 CWN 991, it has been held that if, there is a substantial question of title to any property involved, or if prima facie, the record of rights in respect of the property appears to be wrong or erroneous and for that purpose the question of title requires to be investigated, or on the very face of it, the record of rights appears to be clearly wrong, the aggrieved party is entitled to bring a suit to have his title to the property declared by getting the record of rights in question declared erroneous. Section 578 of the W. B. Estates Acquisition Act, 1953 which was inserted in the Act when the appeal was pending in the High Court long after the suit had been decreed, does not affect the decree already passed. The suit was therefore maintainable. In Ayubali Sardar & anr. (1975) 2 CLJ 305 (snpra), it bas been held by a Division Bench of this Court that notwithstanding an entry adverse to the plaintiff's claim a suit for declaration of title based on an independent cause of action is maintainable in law. Nothing prevents such a plaintiff from getting the relief claimed by him even without altering or correcting the erroneous entry in the relevant record-of-rights. It has further been held- that in order to come within the purview of s. 578(2) (b), the suit itself must relate to a dispute and an adjudication involving determination of a question as to whether the plaintiff, a raiyat or an intermediary, is or is not entitled to retain the land in suit under the provisions of the Act. Such a question may arise for determination by implication, not having arisen in some cases, to bring the case within the mischief of the clause. But the point to be noted is that such a question must arise for determination in the suit and if so arises, the provision in question is not invoked. The provision is not invoked only because a decree in favour or against the plaintiff may have some ulterior bearing on what land the plaintiff would claim under the Act. The fact that the decree may in its ultimate analysis, have its bearing on t he plaintiff's right to retain, by itself would not bring the suit within the mischief of s. 57B(2)(b). 9. The fact that the decree may in its ultimate analysis, have its bearing on t he plaintiff's right to retain, by itself would not bring the suit within the mischief of s. 57B(2)(b). 9. As already indicated, the suit out of which the present appeal arises was instituted on an independent cause of action for declaration of title and permanent injunction upon the allegation that the plaintiff purchased the suit property by a registered Kobala from defendant no. 5 who retained the suit property by filing a return in Form 'B'. Such a suit is not clearly barred by s. 578 of the Estates Acquisition Act. The learned Subordinate Judge committed an error in law in holding that the suit had abated. 10. Mr. Majumdar submits that he does not press the prayer for injunction against the added defendant no. 3, Kartick Mallick. 11. In the result, the appeal is allowed and the judgment and decree of the lower appellate court are set aside. The judgement and decree of the trial court are affirmed except the decree of permanent injunction against the added defendant no. 3, Kartick Mallick. That part of the decree against Kartick Mallick is set aside. as make no order as to costs in this appeal. Appeal allowed in part.