Gour Hari Ghosh v. Shib Sankar Ghosh — 1991 DIGILAW 292 (CAL)

JUDGMENT This is a defendant's appeal against an appellate decree passed by the Subordinate Judge, Suri, reversing the judgment and decree of the trial court. The sole question raised in this appeal, is if the civil court has power to decide an issue involving the relationship of owner and baragadar in the face of a report submitted by an officer appointed under sub-s. (1) of s. 18 of the West Bengal Land Reforms Act, 1955, (hereinafter referred to as the Act) in pursuance of sub-s. (3) of S. 21. Shortly stated, the facts of the case are as follows: 2. The entire "Ka" Schedule land described in the plaint belonged to one Parbati Sundari who sold the same by two different Kobalas on the same date to the plaintiff and the defendants nos.1 and 2. It has been alleged by the plaintiff that Parbati Sundari used to cultivate her land through hired labourers before the sale and that after the sale the land was demarcated to the two sets of vendees. The defendants have for some times past been creating boundary disputes. Hence a suit for declaration of title and permanent injunction was filed against them. 3. The defendants do not deny the purchase of the moiety share of the land by the plaintiff, but their case is that they were bargadars in the lands even before the sale of the same by Parbati Sundari. They deny the possession of the plaintiff and assert that their relationship with the owner of the land as bargadar has already been decided by the J. L. R. O., an officer appointed under s. 18 (1) of the Act, for deciding such an issue. 4. The learned Munsif before whom the suit was filed, following the decision in Chapala Bala Adhikary v. Manoranjan Das & Others 1975(2) C.L.J. 447 held that the suit being for a declaration of title and permanent injunction the relationship of owner and bargadar between the parties was not directly concerned. He, therefore, ignored the report submitted by the J. L. R. O. in pursuance of sub-s. (3) of s. 21 of the Act. He, however, considered another report of the J. L. R. O. in which the defendant no. He, therefore, ignored the report submitted by the J. L. R. O. in pursuance of sub-s. (3) of s. 21 of the Act. He, however, considered another report of the J. L. R. O. in which the defendant no. 1 was adjudged as a bargadar under the plaintiff's vendor and also a notice served by the J. L. R. O. asking the plaintiff to take owner's share of the produce. Having considered these documents in relation to the plaintiff's claim of being in Khas possession the Munsif held that the land in dispute was actually in possession of the defendants. He, therefore, decreed the suit in part declaring plaintiff's title to the suit land only and disallowing the other prayers. 5. On appeal the learned Subordinate Judge also relied on 1975(2) CLJ 447 and agreeing with the Munsif ignored the J. L. R. O.'s report under s. 21 (3) of the Act. He went further and ignored the previous adjudication by the J. L. R. O. regarding the relationship of owner and bargadar between the previous owner and the defendant as also the notice served on the plaintiff asking him to take the owner's share of the produce. Depending on the other evidence he found that the plaintiff was in land and decreed the suit in full. 6. The respondents do not appear and the appeal is heard ex parte. 7. On behalf of the appellants Mr. Amit Kumar Raksit argues that the courts below failed to appreciate the implications of the decision in 1975(2) C. L. J. 447 and wrongly ignored the J. L. R. O.'s report submitted under sub-s. (3) of s. 21 of the Act. It is, therefore, necessary to examine the decision in Chapala Bala's case more closely. 8. Chapala Bala's case was that one Harendra Nath Das who was a bargadar under her had executed a registered istofanama and that thereafter she had been cultivating the land in question with the help of hired labourers who used to execute Krishimajuri agreement each year in lieu of remuneration. A portion of the suit land was described as a bamboo grove previously but the said grove was no longer in existence and the said portion was lying fallow. The defendant had approached the plaintiff for granting settlement of the same but she did not agree. The defendant thereafter was trying to dispossess her from the suit land. A portion of the suit land was described as a bamboo grove previously but the said grove was no longer in existence and the said portion was lying fallow. The defendant had approached the plaintiff for granting settlement of the same but she did not agree. The defendant thereafter was trying to dispossess her from the suit land. The plaintiff Chapala Bala had, therefore, filed a suit for declaration of title, confirmation of possession and permanent injunction. The learned Munsif on the prayer of the defendant referred to the relevant officer appointed under S. 18(1) of the Act the question whether the defendant was a bargadar under the plaintiff Chapala Bala Adhikary. The plaintiff filed a revision case before the High Court and a Rule was issued. But the officer concerned had already decided the issue referred to him under s. 21(3) of the Act. 9. Mr. Justice Chittatosh Mukherjee (as His Lordship then was) proceeded to determine the scope of a reference by the civil court to the relevant officer under s. 21(3) of the Act when in the frame of the suit as set out in the pleading the question of ascertaining the relationship of owner and bargadar was not directly involved. On a detailed examination of the provisions of the Act His Lordship held that the amendment brought in sub-s. (3) of s. 21 of the Act by the amending Act of 1974 being procedural in nature was retrospective in effect and was as such applicable to a pending proceeding. He further held that the applicability or otherwise of s. 21 (3) of the Act would depend upon the frame of the suit, the relief prayed for and issues involved. Therefore, when the question of applicability of sub-S. (3) is raised the court should examine pleadings and consider the issues which arise for decision in suit. On an examination of the dictionary meaning of the word "question" the court held that s. 21(3) would be applicable only when for disposal of a suit or proceeding it would be necessary to decide the question whether a person is a bargadar or not. When an issue in this behalf is presented before or comes up for decision in a civil or criminal proceeding, the court is required to refer it to the officer or authority mentioned in s. 18(1). 10. When an issue in this behalf is presented before or comes up for decision in a civil or criminal proceeding, the court is required to refer it to the officer or authority mentioned in s. 18(1). 10. The above interpretation of the relevant provisions of the law should be considered in the background of the jurisdictional limitations set forth in Chapter III of the Act. After the amendment of sub-s. (2) of S. 18 by the insertion of the words "or otherwise" by the West Bengal Land Reforms (Amendment) Act, 1974, the officer or authority mentioned in sub-s. (1) of the said section has become the sole authority to decide the question whether a person is a bargadar or not. Sub-section (3) of s. 21 is a complement to sub-s. (2) of s. 18 and orders passed under both the respective sections are appealable under s. 19 of the Act. Again, under sub-s. (1) of S. 21 no order or other proceedings whatsoever under Chapter III of the Act shall be questioned in any civil court and no civil court shall entertain any suit or proceeding in respect of any matter mentioned in Ss. 17, 18, 19B and 20B. 11. The combined effect of all the above provisions is that :–– (a) any suit in respect of any of the matters mentioned in Ss. 17, 18, 198 and 20B is barred in the Civil Court. (b) any matter involving the question whether a person is a bargadar or not is within the exclusive jurisdiction of the officer or authority appointed under sub-s. (1) of s. 18, (c) no order passed by an officer or authority under Chapter III of the Act can be questioned in a civil court, and (d) orders passed under Ss. 17, 18 and sub-s. (3) of s. 21 are appealable to the authority mentioned in s. 19. 12. It follows from the above analysis of the legal position that the civil court has no jurisdiction to decide the question if a person is a bargadar under another person. If such a question comes up for decision, the court shall send it to the officer or authority mentioned in sub-s. (1) of s. 18. Conversely, barring the matters expressly mentioned in Chapter III of the Act the special jurisdiction of the officer or authority ceases. If such a question comes up for decision, the court shall send it to the officer or authority mentioned in sub-s. (1) of s. 18. Conversely, barring the matters expressly mentioned in Chapter III of the Act the special jurisdiction of the officer or authority ceases. All other matters are triable by the civil court by virtue of the power conferred under s. 9 of the Code of Civil Procedure, 1909. Thus the question of title or of any other status of a litigant other than the status of a bargadar is triable is a civil court. The observations of His Lordship in Chapala Bala's case should be interpreted in the context of the above legal position. 13. Adverting to the facts of the present appeal it is found that the plaintiffs have claimed title and possession. So far as title is concerned, it is within the exclusive domain of the civil court. In fact, the plaintiff's title has not been challenged and it has also been proved. So far as the question of possession is concerned, the plaintiffs are no doubt in juridical possession. If the defendant's claim of barga is proved, they will be in possession within their limited right. In that case, however, no question of injunction would arise unless the cultivation by the bargadar ceases according to law. Therefore, no relief in this respect can be given to the plaintiffs if the defendant actually happens to be a burgadar. This, therefore, is a vital issue. In fact, the trial court has found it necessary to frame issue no. 2 in the following words: "Whether the defendant is a bargadar of the suit land under the plaintiffs". Where is the decision on this issue? Both the trial court and the first appellate court have avoided this issue. This is an, infirmity in their judgments, as it is legally necessary to give a finding on each issue which is vital and is essential for adjudging the disputes between the parties. Under the provisions of Chapter III of this Act this issue cannot be decided by the Civil Court and under sub-s. (3) of section 21 of the Act the court is bound to refer it to the officer or authority mentioned in sub-s. (1) of s. 18 for decision. Under the provisions of Chapter III of this Act this issue cannot be decided by the Civil Court and under sub-s. (3) of section 21 of the Act the court is bound to refer it to the officer or authority mentioned in sub-s. (1) of s. 18 for decision. The court is further bound under the aforesaid sub-s. (3) to dispose of the suit in accordance with the decision communicated to it by the officer or authority mentioned in sub-s. (1) of s. 18 to whom the question was referred. 14. The judgment in 1975 (2) CLJ 417 emphasizes exactly the above point and I have to point out that the reasoning adopted from the said judgment by the two courts below has not been a correct one. In this connection I like to quote paragraph 19 of the judgment which will make the position clear. "The defendant's case is that his brother was previously the recorded bargadar in respect of the suit land and since 1367 he had been possessing by cultivating the suit land as a bargadar. According to the learned Munsif the main question which would come up for decision in the case was whether the defendant was a bargadar or not having regard to the nature of the pleadings of the parties. In my view, the learned Munsif was correct in holding that in the instant case the sub-s. (3) of s. 21 was attracted and, therefore, the said question should be referred to the officer or authority mentioned in sub-s. (1) of S. 18." 15. In the instant case also I find that issue no. 2 as framed by the trial court is a vital issue arising out of the pleadings of the parties. Hence it was correctly referred under s. 21 (3) of the Act to the relevant officer appointed under s. 18(1). Ext. A is the report of the Bhagchas Officer Khoirasole (Birbhum) against the reference of the Munsif under s. 21(3) of the Act. In this report the Bhagchas Officer clearly held that the defendant no. 1 Gourhari Ghosh was a bargadar in the disputed land. In view of the legal position stated by me in paragraph 11, this report is binding on the court and the court has no jurisdiction to try the issue of bargadarship independently. In this report the Bhagchas Officer clearly held that the defendant no. 1 Gourhari Ghosh was a bargadar in the disputed land. In view of the legal position stated by me in paragraph 11, this report is binding on the court and the court has no jurisdiction to try the issue of bargadarship independently. The first appellate court was, therefore, clearly in error in discarding this report and projecting its own finding in regard to the matter. The defendant no. 1 being found a bargadar on the disputed land his possession cannot be disturbed except by way of an appropriate proceeding under s. 17 of the Act. The plaintiffs are, therefore, not entitled to any decree for permanent injunction as prayed for. 16. In the result this appeal succeeds. The appeal is allowed without any costs. The judgment and decree of the trial court are hereby confirmed. Appeal allowed; judgment and decree of trial Court confirmed.