Research › Browse › Judgment

Calcutta High Court · body

1990 DIGILAW 53 (CAL)

Sisir Kumar Mallik v. Raj Krishna Bhar

1990-02-07

AJIT KUMAR NAYAK, LILAMOY GHOSH

body1990
JUDGMENT Nayak, J. : The only short question of law we are called upon to answer in this second appeal is whether land comprised in homestead or appertaining to buildings and structures owned by the intermediary and retained by him, under section 6 of sub-section (1) of the West Bengal Estate Acquisition Act, would vest in the State, for the simple reason, that it forms part of a registered lease granted by the intermediary in favour of a lessee since before the date of vesting and subsisting on the date of vesting. In other words, the question is whether the right and interest of an intermediary in respect of such homestead land or lands appertaining to building and structures would come to an end by the operation of the Estate Acquisition Act, on the date of vesting, in view of the subsistence of a pre-existing registered lease by the intermediary in favour of a lessee. 2. Undisputedly, the properties in dispute, as described in Schedule A of the plaint comprising buildings and structures and lands appertaining thereto, being premises No. 38/1, Barrackpore Trank Road, within the limits of Burranagar Municipality and Police, Station, 24-Parganas, were allotted exclusively to Taranath Mallik in a partition Suit No. 296 of 1935 with his co-shares Madhusudan Mallik before the Hon’ble Court. As because the said property was recorded erroneously in the name of the said co-sharer Madhusudan Mallik, in the R. S. record of rights, Taranath Mallik brought title Suit No. 34 of 1961 and the same was corrected accordingly. It was the case of the plaintiff-appellants that the disputed property covering the buildings and structures was let out by Taranath Mallik to Defendant-respondent No.1, Raj Krishna Bhar, at a monthly rental of Rs. 150/- by a registered deed of lease dated 6.2.1948, for a period of 61 years and since then Taranath Mallik had been realizing rent from him. In the revisional settlement Respondent No. 1 was wrongly recorded as a Korfa tenant under Madhusudan Mallik, the co-sharer of Taranath Mallik. According to the appellants this entry in the record of rights was erroneous and he submitted a return in B-Form, on 15.7.59, exercising his option to retain the suit property. In the revisional settlement Respondent No. 1 was wrongly recorded as a Korfa tenant under Madhusudan Mallik, the co-sharer of Taranath Mallik. According to the appellants this entry in the record of rights was erroneous and he submitted a return in B-Form, on 15.7.59, exercising his option to retain the suit property. Taranath Mallik died on 13.9.1962 leaving a will a in which the plaintiffs were appointed as the executors and they brought this suit by serving a notice under section 80 C.P. Code, as because the Respondent No. 2, State of West Bengal, began realizing rents from the suit property claiming that the said property had vested in the State. The plaintiffs also claimed for arrears of rent against the Respondent No. 1 and for decree for accounts against the Defendant No. 2. 3. The defence of the respondents in short was that the plaintiffs or for the matter of that, their predecessor-in-interest, Taranath Mallik had no subsisting interest in the disputed property as the same had vested in the State of West Bengal. 4. In the trial Court the learned Sub-ordinate Judge decreed the plaintiff’s suit on the finding that the disputed property was within the ceiling limit of the ex-intermediary, Taranath Mallik, and that he was entitled to retain such property under section 6(1) of the Estate Acquisition Act. The learned Additional District Judge who heard the appeal reversed such judgment and decree of the trial Court on his finding that as because the property in question comprised a mill and factory, Taranath Mallik was not entitled to retain the same as hit by provisions of sub-section 6(2) of the West Bengal Acquisition Act. 5. The short and simple question is whether the ex-intermediary Taranath Mallik is entitled to retain such property under section 6(1) of the West Bengal Estate Acquisition Act, for which he exercised his option y submitting a return, or, it will come under the mischief of section 6(2) of the said Act. 6. Under the West Bengal Estate Acquisition Act, 1953, hereinafter referred to as ‘the Act’, the interest of the intermediaries vested in the State of West Bengal with effect from 15.4.1955. 6. Under the West Bengal Estate Acquisition Act, 1953, hereinafter referred to as ‘the Act’, the interest of the intermediaries vested in the State of West Bengal with effect from 15.4.1955. There is no dispute that the property in question comprised double storied brick built buildings, structures and lands appertaining thereto including a tank which formed part of a registered lease admittedly granted by Taranath Mallik in favour of the Respondent No.1 Raj Krishna Bhar on 6. 2. 1948, at a monthly rental of Rs. 150/-. It is also undisputed that it was erroneously recorded in the name of Madhusudan Mallik in the last revisional settlement. According to the plaintiff-appellants such record of rights contained further erroneous entry showing Respondent No. 1 as a Korfa tenant under Madhusudan Mallik. It has further been urged that on the basis of such erroneous entries in the record of rights, the respondents have claimed the property to have vested in the State of West Bengal. The pertinent question for consideration is whether the right and interest of the plaintiffs or for the matter of that their predecessor-in-interest, Taranath Mallik has come to an end by virtue of the Act. 7. There is no dispute that Taranath Mallik submitted a return in the B-Form as early as 15.7.1959, exercising his option to retain the suit property. It is nobody's case, nor there is any material on record to show that Taranath Mallik had lands beyond the prescribed ceiling. There is no dispute also regarding the nature and character of the lands that it comprised buildings, structures and lands appertaining thereto, as appearing in the deed of lease Ex. 7, as well as from the record of rights. In consideration of all these, the trial Court held that Taranath Mallik was entitled to retain the suit property under section 6(1) of the Act and that they could not vest in the State. 8. According to the learned First Appellate Court this right of retention of the intermediary under section 6(1) of the Act, is subject to the provisions of sub-section (2) of the said section. Sub-section (2) of section 6 of the said Act provides an intermediary who is entitled to retain possession of any lands under sub-section (1) shall be deemed to hold such land directly under the state from the date of vesting as a tenant subject to certain terms. Sub-section (2) of section 6 of the said Act provides an intermediary who is entitled to retain possession of any lands under sub-section (1) shall be deemed to hold such land directly under the state from the date of vesting as a tenant subject to certain terms. The proviso to sub-section (2) contemplates that if any tank fishery or any land comprised in a tea garden, orchard, mill, factory or workshop was held immediately before the date of vesting under a lease, such lease shall be deemed to have been given by the State Government on the same terms and conditions as immediately before subject to such modification therein as the State Government may think fit to move. The learned Appellate Court therefore, came to the conclusion that in view of the undisputed subsistence of the lease on the date of vesting, and having regard to the purpose for which the lease was created, in respect of the demised land comprising a mill, factory or workshop, the terms of the lease would come straightway within the mischief of the proviso to sub-section (2) of section 6 of the aforesaid Act. In coming to such conclusion the learned Appellate Court relied and stressed very much upon the absence of evidence on the plaintiffs' side that the property was being used by the Respondent No. 1 for any purpose other than for what it was leased out. We are constrained to say that the learned Appellate Court was entirely wrong in coming to such hasty conclusion which is not supported by materials on record. On a plain reading of the deed of lease it appears that the lessee could use the demised premises for dwelling and for purposes of factory, trade or business. There is nothing on record to show that either a factory or a mill was set up on the demised premises or even if it was so done, it was standing as such, or was being used as such, on the date of vesting. The plaintiff examined as P. W. 1 was not also cross-examined on this point. As such we cannot be sure and certain that actually the lessee set up a mill or factory in the demised premises since the creation of the lease in 1948 or even if it was created it was being used as such on the date of vesting. As such we cannot be sure and certain that actually the lessee set up a mill or factory in the demised premises since the creation of the lease in 1948 or even if it was created it was being used as such on the date of vesting. Unless the demised premises is used as a mill or factory on the date of vesting the same cannot come within the mischief of the proviso to sub-section (2) of section 6 of the said Act. 9. There can be no argument that simply because the plaintiff-appellants or their predecessor Taranath Mallik were not in actual possession of such demised premises, on the date of vesting the same will automatically vest in the State and that the provisions of clauses (a) and (b) of sub-sec. 1 of section 6 will only be applicable if the intermedia is in actual possession of the property and not otherwise. Such contention cannot be accepted also for the reason that section 6 itself has clearly specified in some of its clauses 'Khas possession" and not in other clauses, for example clause (c) non-agricultural land in khas possession ; clause(d) agricultural land in Khas possession. But no such Khas possession is contemplated in respect of clauses (a) and (b) of sub-section 1 of section 6. Therefore in view of what has been stated above it cannot be said that the interest of Taranath Mallik or for the matter of that his successors-in-interest that is appellants, vested in the state in the demised suit premises. 10. Then again, the Respondent No. 1 got the land under a registered lease created long before the date of vesting for the stipulated period of 61 years. The terms and conditions of the lease show in no undertain terms that the lessor landlord had the right of re-entry on certain conditions including, failure to pay the monthly rent and otherwise. The respondent-defendants cannot deny the right title and interest of the plaintiffs or their predecessor-in-tenant, at the commencement of the tenancy. Reference may be made in this connection to the ruling reported in (1) AIR 1985 SC page 1674. The respondent-defendants cannot deny the right title and interest of the plaintiffs or their predecessor-in-tenant, at the commencement of the tenancy. Reference may be made in this connection to the ruling reported in (1) AIR 1985 SC page 1674. The contract created by the lease cannot therefore be said to have been frustrated and the lessors title eclipsed by the operation of law for the simple reason that it was let out to the lessee even though the landlord had the statutory right to retain such land. In my view f the case, the plaintiffs had their sussisting interest under the lease to realize rent and they are entitled to declarations as prayed for and to a decree for realization of rent against Respondent No. 1 and for accounts against Respondent No. 2. The appeal is allowed and the judgment and decree passed by the learned Additional District Judge, 11th Court, Alipore, are hereby set aside. No order is made as to costs. Ghosh, J. : I agree.