Research › Search › Judgment

Calcutta High Court · body

2000 DIGILAW 507 (CAL)

Harendra Nath Sarkar v. Dibakar Mondal

2000-09-26

SAMARENDRA NATH BHATTACHARJEE

body2000
Judgment 1. In the Second Appeal, the only substantial question of law that awaits my decision is whether both the learned Courts below acted illegally in passing the judgment impugned without compliance with the requirement under the provision of Section 21(2) of the West Bengal Land Reforms Act, 1955, by not referring the disputes before the statutory authority appointed under Section 18 of the said Act. 2. The appellants herein filed a Title Suit No.5 of 1973 against the respondents for declaration of title in the suit property and for permanent injunction against the respondents. The respondents took the plea of bringing possession as bargadars under the plaintiff. The learned trial Judge framed as many as nine issues out of which issue No.6 was as follows : (a) Are the defendants bargadars under the plaintiff in respect of the suit lands as alleged? 3. The learned trial Judge negatived the issue No. 6 on the basis of the oral and documentary evidences and found that defendants are not the bargadars. The suit was decreed in favour of the plaintiff. The learned 1st Appellate Court held, "having regard to the facts and circumstances and the evidences on record, I am convinced that the appellants/defendants are not and never were bargadars in respect of the suit land and that the plaintiff was in khas possession of the same in 1379 B. S. and on the date of the suit as well." On such finding, the learned 1st Appellate Court affirmed the decision of the learned trial Judge. Against the judgment and decree passed by the learned trial Judge dated 19.3.76, the plaintiff has preferred the second appeal. 4. Mr. Kundu, the learned Counsel appearing for the appellants has argued that both the Courts below passed the decree in favour of the respondents after having decided that the appellants are not bargadars under the respondents although the law did not vest such jurisdiction to adjudicate the point in the Courts below. According to Mr. Kundu, the judgments and the decree having passed in violation of Section 21(3) of the West Bengal Land Reforms Act is vitiated with jurisdictional illegality and are liable to be set aside. Mr. According to Mr. Kundu, the judgments and the decree having passed in violation of Section 21(3) of the West Bengal Land Reforms Act is vitiated with jurisdictional illegality and are liable to be set aside. Mr. Kundu, learned Counsel for the appellants has further argued that an application was filed before the learned 1st Appellate Court arising that the dispute between the parties is referable under Section 21(3) of the West Bengal Land Reforms Act, 1974 and the learned Court below directed that the matter would be heard along with the appeal and, unfortunately, that was done. Mr. Kundu has cited a decision in (1) Chapala Bala Adhikary v. Monoranjan Das & Ors. reported in 1975 (2) CLJ page 447. 5. Mr. Roy, the learned Counsel appearing on behalf of the respondents has submitted that the concurrent findings on the point of possession before the learned Courts below cannot be interfered with by this High Court silting in Second Appeal. Mr. Roy further argued that whether the plaintiff is in possession of a suit property or is not a question of fact and when both the Courts have concurrently found that the plaintiff was in possession and the appellants/defendants were never in possession this Court with its limited jurisdiction under Section 100 C.P C. cannot upset such finding on the question of fact. He has cited decisions in (2) Panchugopal Barua v. Umesh Chandra Goswami reported in 1997 (4) SCC 713 , and in (3) Ram Kumar v. Thwas Das reported in 1999 (7) SCC 303 , whereby the Apex. Court has repeatedly held that interference with the judgment and decree passed by the learned 1st Appellate Court is not warranted if it involves re-appreciation of the evidence. 6. It cannot be disputed that in Second Appeal High Court's jurisdiction is limited to the parameters of Section 100 C.P.C., but, the decisions of the Apex Court cited on the above do not stand in the way of entertaining the Second Appeal when the judgment of the Court below suffers from lack of jurisdiction. In (4) K. D. Kallam v. Sabitri Lata reported in 1999 (3) SCC 722 , the Apex Court has held, "where it is found that the 1st Appellate Court has assumed jurisdiction which did nut vest in it the same can be adjudicated in the Second Appeal treating it as a substantial question of law" 7. In (4) K. D. Kallam v. Sabitri Lata reported in 1999 (3) SCC 722 , the Apex Court has held, "where it is found that the 1st Appellate Court has assumed jurisdiction which did nut vest in it the same can be adjudicated in the Second Appeal treating it as a substantial question of law" 7. In the instant case, before me the main point in issue was whether that the defendants are bargadars under the plaintiff. Such adjudication is expressly vested in the authority prescribed by Section 18 of the West Bengal Land Reforms Act, 1955 amended as 1914 holding the field when the judgment were delivered. 8. By the West Bengal Land Reforms (Amendment) Act, 1974 sub-section (3) has been added to Section 21 and the same came into force with effect from 21st June, 1974. The said section reads as thus : "Section 21 (3)-If any question as to whether a 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 authority mentioned in sub-section (1) of Section 18 for decision." 9. In Chapala Bala Adhikary v. Monoranjan Das & Ors. reported in 1975(2) CLJ 447 , His Lordship dealt with the case where the learned Munsif granted an ad interim injunction as prayed for by the plaintiff and issued a show-cause notice upon the defendants. The defendants had entered appearance and filed a written statement in the suit, inter alia, claiming that be was a bargadar in the suit property. His Lordship held : "The applicability or otherwise of Section 21(3) would depend upon the frame of the suit, the relief prayed and issues involved. Section 21(3) is attracted only when the question of barga right directly arises and not merely by implication. Therefore, when the question of applicability of sub-section (3) is raised the Court should examine the pleadings and consider the issues which arise the decision in the suit. If any question as contemplated under Section 21(3) arises for determination, the Court should refer the question to the appropriate authority mentioned in Section 18(1). Even if the question contemplated by sub-section (3) arises in a suit or proceedings, the Court is not powerless to make interlocutory orders in such suit or proceedings. If any question as contemplated under Section 21(3) arises for determination, the Court should refer the question to the appropriate authority mentioned in Section 18(1). Even if the question contemplated by sub-section (3) arises in a suit or proceedings, the Court is not powerless to make interlocutory orders in such suit or proceedings. Chapter III of the Act of 1956, however, does not empower the appropriate authority mentioned in Section 18(1) to make interlocutory orders. Therefore, the Court retains jurisdiction to try the remaining issues in the suit a proceeding and to exercise all powers of a Civil Court in relation to such a suit except the determination of the issue or question whether a person is a bargadar or not." 10. The term "shall" used in the section indicates that such reference to the authority is mandatory. The learned Courts below, therefore, acted illegally in deciding the issue No.6 by not having referred the same to the appropriate authority under Section 18 of the West Bengal Land Reforms Act, 1955. In view of what has been stated above the judgment and decree passed by the Courts below are set aside. The learned trial Judge is directed to refer the dispute before the statutory authority prescribed by Section 18 of the West Bengal Land Reforms Act, 1955 as amended in 1974. The appeal is, thus, disposed of without any order as to costs.